Social Security Disability Law: Borderline Age

The Social Security disability regulations provide that the Commissioner will not apply the age categories mechanically in a “borderline situation.” 20 C.F.R. § 404.1563(a). The Commissioner considers a borderline situation to exist “when there would be a shift in results caused by the passage of a few days or months.” Social Security Ruling 82-46c. The Social Security disability court decisions appear to refuse to permit the mechanical application of the age rules where the disability claimant is less than a few months shy of the next age category.

Regulations

20 C.F.R. §§ 404.1563(a), 416.963(a)

The regulations generally provide that age shall be considered a factor in determining whether a claimant is disabled. However, the regulations specifically provide that the age categories will not be applied mechanically in a borderline situation. The regulations were amended in April 6, 2000 to clarify that if a person’s age category changes during the period for which SSA is adjudicating a disability claim, SSA will use the age category that is applicable to the person during the period for which SSA is deciding if the person is disabled. See 65 Fed. Reg. 17994, 17995(April 6, 2000). SSA further explained that in borderline age situations, SSA will not apply the age categories mechanically, and that a “borderline” situation means that the individual is “within a few days to a few months” of reaching a higher age category.

Tip

If you are close to a critical age, such as 50, 55 or 60, examine if the Medical-Vocational Guidelines dictate a finding of disability once you reach the next age category. If so, have your attorney argue at the hearing that the ALJ should consider you disabled six months prior to this key birthday.

Rulings

Social Security Ruling 83-10

Social Security Ruling 83-10 provides that older age is an increasingly adverse vocational factor for persons with severe impairments. The chronological ages 45, 50, 55 and 60 may be critical to a decision. The ruling notes that the regulations also provide that the age categories shall not be applied mechanically in borderline situations. For example, a rule for an individual of advanced age (55 or older) could be found applicable, in some circumstances, to an individual whose chronological age is 54 years and 11 months (closely approaching advanced age). No fixed guidelines as to when a borderline situation exists are provided since such guidelines would reflect a mechanical approach.

Acquiescence Ruling 88-1 (11)

AR 88-1(11) was issued in response to the Patterson v. Bowen, 799 F.2d 1455, 1458 (11th Cir. 1986), decision in the Eleventh Circuit (discussed below). In cases where the claimant resides in Florida, Georgia or Alabama at the time of the determination or decision at any level of administrative review (i.e., initial, reconsideration, administrative law judge hearing or Appeals Council) and (1) the issue of disability is resolved at the last step of the sequential evaluation process; (2) the Medical-Vocational Guidelines would otherwise direct a decision of “not disabled”; and (3) the claimant offers substantial credible evidence of his or her physical or mental impairments as proof that the ability to adapt to other work is less than the level established under the Medical-Vocational Guidelines for individuals of the particular age, a specific finding must be made as to the claimant’s ability to adapt to a new work environment.

Case Law

First Circuit

In Barrett v. Apfel, 40 F. Supp.2d 31 (D. Mass. 1999), the court held that given that the claimant was more than one year away from his fifty-fifth birthday when the ALJ heard his case, and more than nine months away when the decision was rendered, the ALJ did not err in failing to consider the claimant to be of “borderline age.” Id. at 38. In so holding, the court noted that the claimant had turned age 55 before the Appeals Council denied review, “federal regulations make clear that all requirements for entitlement must be met before the administrative law judge’s decision.” Id., citing 20 C.F.R. § 404.620. The court also recognized that an ALJ may not apply the Grids “‘mechanically in a borderline situation.’” Id., quoting 20 C.F.R. § 404.1563(a). However, as the term “borderline” is not defined either by statute or regulation, the court then surveyed cases from around the country discussing “borderline age.” Id.

Second Circuit

A claimant who turns 50 years of age during the course of litigation does not require a determination that she is disabled under the Grids where the decision under review concerned her request for benefits during a period before she turned 50. Toro v. Chater, 937 F. Supp. 1083, 1094 (S.D.N.Y. 1996).

A claimant who was three months shy of his fiftieth birthday on the date he was last insured and who could not perform sedentary work, should have been classified as approaching advanced age for purposes of applying the Grids. Davis v. Shalala, 883 F. Supp. 828 (E.D.N.Y. 1995).

Third Circuit

The plain meaning of 20 C.F.R. § 404.1563(a) is that where the claimant’s age falls within a few months of the starting date of an age category the Grids should not be employed mechanically. Kane v. Heckler, 776 F.2d 1130, 1133 (3d Cir. 1985).

Fourth Circuit

A Maryland district court noted that Social Security regulations specifically state that the “age categories should not be applied mechanically in a borderline situation.” France v. Apfel, 87 F. Supp.2d 484, 491 (D. Md. 2000), citing 20 C.F.R. § 404.1563(a). In France, the court surveyed cases discussing this regulation, and held that the ALJ mechanically applied the age criteria of the Grids and that this application was not based on substantial evidence. Id. at 491-92, citing Ford v. Heckler, 572 F. Supp. 992, 994 (E.D.N.C. 1983). Thus, the court remanded this case with instructions to place the claimant in the regulatory category of “advanced age.” Id.

In a case where the ALJ rendered his decision 22 days prior to the claimant’s 55th birthday, a Maryland district court held that the ALJ erred in mechanically applying the age categories in a borderline situation. Washington v. Apfel, 40 F. Supp.2d 326, 330 (D. Md. 1999). The court noted that the regulations provide that an application remains in effect until the ALJ issues the hearing decision; and if the claimant meets all the requirements for entitlement while the application is in effect, benefits will be paid from the first month that the requirements are met. Id., citing 20 C.F.R. § 404.620(a) and (a)(1). The regulations also provide that when considering age as a vocational factor, the agency will not apply the age categories mechanically in a borderline situation. Id., citing 20 C.F.R. § 404.1563(a). In Washington, the court held that the ALJ failed to even recognize the close proximity of his decision date to the claimant’s 55th birthday, focusing only on the claimant’s “alleged” onset date, and reversed and remanded for an award of benefits. Id. at 330-31.

The Commissioner should not have mechanically applied age categories in a borderline situation where the claimant, who was illiterate, was 15 days shy of 45 when the Appeals Council rejected his disability claim. Ford v. Heckler, 572 F. Supp. 992, 994 (E.D.N.C. 1983).

Fifth Circuit

Even if the claimant was in the 50-54 age category, a person with his education, work experience and functional capacity would still not be considered disabled. Harrell v. Bowen, 862 F.2d 471, 479 (5th Cir. 1988).

The Commissioner’s use of the age classifications on a 49-year-old claimant was upheld despite a medical report suggesting that the claimant had prematurely aged. See Underwood v. Bowen, 828 F.2d 1081, 1083 (5th Cir. 1987).

Where claimants will remain insured while attaining a vocationally significant age after the date of the ALJ’s decision, the ALJ should consider whether such circumstances should be considered a borderline situation. Walhood v. Secretary of Health and Human Servs., 875 F. Supp. 1278, 1284 (E.D. Tex. 1995).

Sixth Circuit

In Bowie v. Comm’r of Soc. Sec., 539 F.3d 395 (6th Cir. 2008), the Sixth Circuit considered a single procedural issue involving a claimant who was 49 years old, but less than two months away from her 50th birthday at the time of the ALJ’s decision. Id. at 396. On her appeal, the claimant argued that she was borderline between the “younger individual” age group and the “closely approaching advanced age” group, which required the ALJ to apply 20 C.F.R. § 404.1563(b) to determine her age category. Id. at 398. By not explicitly indicating that he did consider her borderline status, the claimant alleged that the ALJ erred. Id. at 398-399. The court found, however, that the ALJ’s decision was supported by substantial evidence and “not the product of procedural error,” as “§ 1563(b) does not impose on ALJs a per se procedural requirement to address borderline age categorization in every borderline case.” Id. at 399. The regulation merely promises claimants that the Administration will “consider whether to use the older age category after evaluating the overall impact of all the factors in your case.” 20 C.F.R. § 404.1563(b) (emphasis added). The court found further support in the HALLEX in an Appeals Council interpretation of 20 C.F.R. § 404.1563 that suggests that ALJs “consider whether the claimant has presented ‘additional vocational adversities’ in determining whether to veer from a claimant’s chronological age in a borderline situation.” Id., citing HALLEX II-5-3-2. The council further advised:

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. at 400 (emphasis added). In this case, the court found no evidence that the claimant suffered from any “additional vocational adversities” that would place her in the higher age category, and, therefore, the ultimate determination was supported by substantial evidence. Id.

Finding that the ALJ strictly and mechanically applied the age categories to the claimant and failed to address in any fashion whether a borderline age situation was present, the court held that the ALJ should have considered whether Pickard’s proximity to the next higher age category (four months shy of her 55th birthday) placed her in a borderline situation and, based on whatever evidence was available, which category best described her. Pickard v. Comm’r, 224 F. Supp.2d 1161, 1168 (W.D. Tenn. 2002). The court reviewed the case law regarding “borderline age” and determined that courts have generally concluded that:

the borderline range falls somewhere around six months from the older age category. Compare Cox v. Apfel, No. 98-7039, 1998 WL 864118, at *4 (10th Cir. Dec.14, 1998) (because plaintiff was within six months of next age category at time decision issued, ALJ erred by not addressing whether plaintiff was of borderline age); Daniels v. Apfel, 154 F.3d 1129, 1132-33 (10th Cir. 1998) (65 days borderline); Kane v. Heckler, 776 F.2d 1130, 1132-33 (3d Cir. 1985) (48 days required consideration of whether claimant was in borderline situation); Smith v. Barnhart, No. 00 C 2643, 2002 WL 126107, at 24 (N.D. Ill. Jan. 31, 2002) (noting that the cases tend to treat claimants who are within six months of next age category as borderline); Freundt v. Massanari, No. 00 C 4456, 2001 WL 1356146, at *17-20 (N.D. Ill. Nov. 2, 2001) (six months and 12 days from next age category should have triggered inquiry by ALJ concerning borderline situation); Graham v. Massanari, No. 00 C 4669, 2001 WL 527326, at *8 (N.D. Ill. May 9, 2001) (four and one-half months borderline); France v. Apfel, 87 F. Supp.2d 484, 491-92 (D. Md. 2000) (five months borderline); Russell [v. Commissioner of Soc. Sec., 20 F. Supp.2d 1133, 1134-36 (W.D. Mich. 1998)] (92 days borderline, stating that Appeals Council Interpretation II-5-302 (effective Mar. 16, 1979) “appears to establish that the Appeals Council believes there is a six month window in which a claimant’s situation is ‘borderline’”); Tousignant v. Apfel, No. 97 C 4150, 1998 WL 142415, at *5 (N.D. Ill. Mar. 26, 1998) (finding that 10 months would seem to be borderline); Leyba v. Chater, 983 F.Supp. 1048, 1051 (D.N.M. 1996) (three and one-half months borderline); Davis v. Shalala, 883 F.Supp. 828, 838-39 (E.D.N.Y. 1995) (three months borderline); Hill v. Sullivan, 769 F.Supp. 467, 470-71 (W.D.N.Y. 1991) (three months two days borderline); Chester v. Heckler, 610 F.Supp. 533, 535 (S.D. Fla. 1985) (one month triggered inquiry into borderline status); Roush v. Heckler, 632 F.Supp. 710, 711-12 (S.D. Ohio 1984) (six months borderline) with Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996) (seven months not borderline); Fleenor v. Secretary of Health & Human Servs., No. 92-5082, 1992 WL 379438, at *2-3 (6th Cir. Dec. 15, 1992) (court would not disturb ALJ’s finding as to the appropriate age category of claimant, even though he was five months shy of next category); Wright v. Sullivan, No. 91-5992, 1992 WL 75218, at *6 (6th Cir. Apr. 15, 1992) (almost two years not borderline); Barrett v. Apfel, 40 F. Supp.2d 31, 39-40 (D. Mass. 1999) (nine months not borderline); Green v. Chater, No. C-96-2299 MHP, 1997 WL 797807, at *3 (N.D. Cal. Dec. 2, 1997) (three years not borderline); Woods v. Chater, No. C 95-1748 SI, 1996 WL 570490, *4-5 (N.D. Cal. Sept. 27, 1996) (four months not borderline); Peters v. Bowen, No. CIV.A. 85-4431, 1986 WL 11398, at *5 (E.D. La. Oct. 3, 1986) (two years not borderline).

Id. at 1168. The court held that the ALJ’s failure to address the borderline issue and to explain his choice of age category impeded the court’s ability to review his application of the regulations and may have violated 20 C.F.R. § 404.953, which requires the ALJ to include findings of fact and reasons for his conclusions in his decision. Id. at 1169. The court also concluded that the claimant carried her burden of showing that remand was appropriate for the purpose of allowing the ALJ to consider the new evidence presented by her. Id.

Where claimant’s age placed him in a borderline category and the ALJ mechanically applied the Grids, the court remanded, stating that “[t]he regulations provide that in evaluating under the Grids, the SSA ‘will not apply [the] age categories mechanically in a borderline situation.’” Russell v. Commissioner of Social Sec., 20 F. Supp.2d 1133, 1134-35 (W.D. Mich. 1998), quoting 20 C.F.R. § 404.1563(a). The court noted that the claimant “was 92 days short of his 50th birthday” on the date of the ALJ’s decision and “the claimant’s age as of the time of the decision governs.” Id. at 1134. The court cited Appeals Council Interpretation II-5-302 (effective Mar. 16, 1979), stating that “[g]enerally, establishing an onset date up to six months prior to attainment of the specified age….” Id. at 1135. The court further cited a second Appeals Council Interpretation, II-5-302(A) (effective Nov. 2, 1993), which provides:

To identify borderline age situations when making disability determinations, adjudicators will apply a two-part test:

(1) Determine whether the claimant’s age is within a few days or a few months of a higher age category.

(2) If so, determine whether using the higher age category would result in a decision of “disabled” instead of “not disabled.”

If the answer to one or both is “no,” a borderline age situation either does not exist or would not affect the outcome. The adjudicator will then use the claimant’s chronological age.

If the answer to both is “yes,” a borderline age situation exists and the adjudicator must decide whether it is more appropriate to use the higher age or the claimant’s chronological age.(Use of the higher age category is not automatic.)

Id. The court in Russell considered these two interpretations, as well as the decisions of other courts in finding that the claimant presented a borderline situation. Id. When a borderline situation is present, “a factual determination must be made as to the appropriate age category,” and that “[t]o do otherwise is to mechanically apply the age categories, an action prohibited by 20 C.F.R. § 404.1563(a).” Id. at 1134-35. The ALJ is required to explain his or her use of a claimant’s chronological age when there is a “showing of additional adversities,” as was demonstrated in Russell by the number of the claimant’s impairments, and the ALJ’s failure to do so “both impedes judicial review of the ALJ’s application of 20 C.F.R. § 404.953(a) and appears to violate 20 C.F.R. § 404.953.” Id. at 1136. “Accordingly, the ALJ was required to make a finding which included consideration of more than just the plaintiff’s chronological age.” Id.

Seventh Circuit

Although a Wisconsin district court noted that a partial judicial award could be entered where the plaintiff’s passage into a new age category rendered her disabled under the Grid, the cases made it clear that the record must be fully developed. Wirth v. Barnhart, 318 F. Supp.2d 726, 733 (E.D. Wis. 2004).

In Young v. Barnhart, 287 F. Supp.2d 905 (N.D. Ill. 2003), the court held that because the claimant was four and one-half months shy of his fifty-fifth birthday at the time of his hearing, the ALJ erred in not performing a borderline analysis to determine whether he should be classified as “advanced age” rather than “approaching advanced age,” noting that if the ALJ had applied the next age category, the claimant would have been found to be disabled under Rule 202.04 of the Medical-Vocational Guidelines. Id. at 912.

In affirming the Commissioner’s decision, the court held that it did not have jurisdiction to reverse the ALJ’s decision based on the fact that the claimant turned 55 before the complaint was filed, as she was 53 years of age at the time of the ALJ’s decision and the court has only the power to review the ALJ’s decision under 42 U.S.C. § 405(g). Latkowski v. Barnhart, 267 F. Supp.2d 891, 906 (N.D. Ill. 2003).

The court refused to rule in favor of a 54-year-old claimant who argued that she was “of advanced age” due to her failure to present any evidence that she was “somehow atypical of a 54 year old.” Sims v. Bowen, 666 F. Supp. 1141, 1147 (N.D. Ill. 1987).

Ninth Circuit

Although the court agreed that “age categories will not be applied mechanically in a borderline situation,” the court found that the claimant’s case was not a borderline case where the claimant was closer to age 59 than age 60. Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988), citing Calvin v. Heckler, 782 F.2d 802, 805 (9th Cir. 1986) and Gonzales v. Secretary of Health & Human Servs., 784 F.2d 1417, 1420 (9th Cir. 1986) (noting that it is incumbent upon the Commissioner to decrease his reliance upon the Grids in cases where the individual claimant’s circumstances approach the upper limits of the Grid’s guidelines).

Remand was required in light of the claimant’s age where the claimant was two months shy of his 45th birthday when the ALJ decided the case and 15 days shy when the Appeals Council ruled. Hilliard v. Schweiker, 563 F. Supp. 99, 101-02 (D. Mont. 1983).

Tenth Circuit

In Daniels v. Apfel, 154 F.3d 1129 (10th Cir. 1998), the primary question was whether the Commissioner adequately considered the fact that the claimant was only a little more than two months short of being in an age category in which he would have been presumptively disabled, when the Commissioner found him not disabled based on the Medical-Vocational Guidelines. Id. at 1133. The court held that the Commissioner failed to consider the fact that the claimant fell within a “borderline” age situation and, therefore, improperly applied the Grids “mechanically,” requiring remand for further consideration. Id.

Pursuant to Social Security Ruling 82-46c, a “borderline situation” exists “when there would be a shift in results caused by the passage of a few days or months.” Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996) (finding that a claimant who was seven months short of the next age category at the time her insured status expired did not fall within a borderline situation preventing application of the Grids).

The Tenth Circuit refused to apply the Eleventh Circuit rule that prohibits strict reliance on the age criteria of the Grids in cases where the claimant proffers substantial, credible evidence that his or her ability to adapt to a new work environment is less than the level established under the Grids for persons of the claimant’s age. Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996), citing Patterson v. Bowen, 799 F.2d 1455, 1458 (11th Cir. 1986) and Reeves v. Heckler, 734 F.2d 519, 526 (11th Cir. 1984). In Lambert, the court expressed “serious doubts about the correctness of that rule,” but held that even if it were to apply the rule, the only factors presented by the claimant did not relate to her ability to adapt to other work. Id. at 470-71.

Eleventh Circuit

The Commissioner cannot use the Grids concerning age to establish conclusively a claimant’s ability to adapt to a new work environment. Patterson v. Bowen, 799 F.2d 1455, 1458 (11th Cir. 1986). “In Reeves, we held that in cases where the ALJ has applied the age Grids in a mechanical fashion, the claimant should be given an opportunity to make a proffer of evidence on his ability to adapt.” Id., citing Reeves v. Heckler, 734 F.2d 519, 526 (11th Cir. 1984). If the claimant offers substantial evidence that an ALJ could find credible and tending to show that the claimant’s ability to adapt to a new work environment is less than the level established under the Grids for persons his or her age, the district court is required to remand the case to the Commissioner for reconsideration of the age/ability to adapt issue. Id. If, on the other hand, the claimant does not make such a proffer, the ALJ’s mechanistic use of the age Grids would be harmless error and there is no need to remand to the Commissioner. Id.

The court held in Crook that a claimant who was 54½ years of age at the time the ALJ’s decision was issued should have been considered a person of “advanced age” under the Medical-Vocational Guidelines, warranting a finding of disability in accordance with Rule 202.06. Crook v. Barnhart, 244 F. Supp.2d 1281, 1284 (N.D. Ala. 2003). In so holding, the court relied on the Sixth Circuit case of Varley v. Secretary of Health & Human Servs., 820 F.2d 777, 780 (6th Cir. 1987) which held that “the claimant’s age as of the time of the decision governs.” Id. at 1283. The court also cited 20 C.F.R. § 404.1563 which provides that SSA “will not apply these (chronological) age categories mechanically in a borderline situation,” as well as the Appeals Council Interpretation II-5-302 (effective Mar. 16, 1979) stating that “[g]enerally, establishing an onset date up to six months prior to attainment of the specified age would be reasonable.” Id. Additionally, the court held that the medical evidence indicated that the claimant could not perform light work as found by the ALJ, and was limited to “no more than sedentary work.” Id. at 1285. Thus, a finding of disability was also warranted in accordance with Rules 201.06 and 201.14 of the Medical-Vocational Guidelines. Id.

The ALJ erred in mechanically applying the Grids to a claimant whose 50th birthday was 30 days after the expiration of his insured status. Chester v. Heckler, 610 F. Supp. 533, 534-35 (S.D. Fla.1985).