Opinion
Case No. CIV-18-1160-C
11-12-2019
DOUGLAS WADE WOOD, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 423. The Commissioner has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the Commissioner's decision be reversed and remanded for further administrative proceedings. I. Administrative History and Agency Decision
On July 23, 2016, Plaintiff protectively filed his application for DIB. AR 14. The Social Security Administration denied his application initially and on reconsideration. An Administrative Law Judge ("ALJ") then held a hearing at which Plaintiff and a vocational expert ("VE") testified. AR 35-71. The ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. AR 14-29.
Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. At the second step, the ALJ found that Plaintiff had multiple physical and mental severe impairments. At the third step, the ALJ found that these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. AR 16-24.
At step four, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform work at the light exertional level as defined in 20 C.F.R. § 404.1567(b) with additional exertional and nonexertional limitations. AR 24-27. Based on this RFC finding and VE testimony regarding the requirements of Plaintiff's previous work, the ALJ determined that Plaintiff was unable to perform his past relevant work. AR 27-28.
At step five, the ALJ again relied on the VE's testimony and concluded Plaintiff's RFC would allow him to perform jobs existing in significant numbers in the national economy including housekeeping cleaner, photocopy machine operator, and office helper. AR 28-29. As a result, the ALJ concluded that Plaintiff had not been under a disability, as defined by the Social Security Act, from November 17, 2014, through the date of the decision. AR 29.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009). II. Issues Raised
Plaintiff alleges that (1) the ALJ failed to recognize and address Plaintiff's "borderline age situation," and (2) the mental RFC determination was not supported by substantial evidence. Plaintiff's Opening Brief (Doc. No. 18) at 7-15. The undersigned agrees that the first argument warrants remand and, therefore, does not address the second argument. III. General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, internal quotation marks, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. § 404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied [his] burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of [his] age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987). IV. Analysis
A. Consideration of Age in Step Five Decision
1. Substantial evidence does not support the ALJ's finding that Plaintiff was a person closely approaching advanced age
Plaintiff asserts the ALJ failed to consider whether his chronological age placed him on the borderline of a person of advanced age. Pl.'s Br. at 7-13. The Commissioner has established three age categories: younger person (under age fifty), person closely approaching advanced age (age fifty to fifty-four), and person of advanced age (age fifty-five and over). 20 C.F.R. § 404.1563. For this case, the relevant categories are "person closely approaching advanced age" and "person of advanced age." The agency recognizes that advancing age is "an increasingly limiting factor in a person's ability to make . . . an adjustment [to other work]" and, at advanced age, "age significantly affects a person's ability to adjust to other work." 20 C.F.R. § 404.1563(a), (e).
The agency has organized its Medical-Vocational Guidelines, often called the "Grids," by age category. 20 C.F.R. Pt. 404, Subpt. P, App. 2.
To determine which age category applies, the agency looks to the claimant's age when he "last met the insured status requirement before the date of adjudication. . . ." SSR 83-10, 1983 WL 31251, at *8 (1983); see also Daniels v. Apfel, 154 F.3d 1129, 1132 n.4 (10th Cir. 1998) ("[T]he last day of [plaintiff's] insured status . . . is the appropriate date for determining applicability of the grids."). The ALJ determined the last date of Plaintiff's insured status was December 31, 2019, and because the ALJ's decision was issued in January 2018, the Commissioner agrees Plaintiff's age on the date of the ALJ's decision is the relevant age to consider. See AR 16; Defendant's Brief (Doc. No. 24) at 12. On that date, Plaintiff was only five months and four days shy of age 55 and thus fell near the cutoff between the two categories. See AR 28.
Although Plaintiff was not formally within the advanced age category, the agency has announced it will
not apply the age categories mechanically in a borderline situation. If [the 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] case.20 C.F.R. § 404.1563(b). The agency provides "[n]o fixed guidelines as to when a borderline situation exists . . . since such guidelines would themselves reflect a mechanical approach." SSR 83-10, 1983 WL 31251, at *8. Plaintiff asserts he would qualify as presumptively disabled under the Grids if placed in the advanced age category. Pl.'s Br. at 9 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.02).
In Daniels, the Tenth Circuit held that "a finding regarding the appropriate age category in which to place a claimant must be supported by substantial evidence," and in a borderline situation when the claimant's age is within a few days or months of the next higher age category, the Commissioner "must determine based on whatever evidence is available which of the categories on either side of the borderline best describes the claimant, and the Commissioner may apply that category in using the grids." Daniels, 154 F.3d at 1136. Later the same year, in Cox v. Apfel, No. 98-7039, 1998 WL 864118, at *4 (10th Cir. Dec. 14, 1998), the Tenth Circuit held the ALJ erred by not addressing whether the plaintiff was of borderline age where he was within six months of the next age group.
Similarly, in Byers v. Astrue, 506 F. App'x 788 (10th Cir. 2012), the Tenth Circuit reversed and remanded where the evidence showed that on the date of the ALJ's decision the claimant was five months and 18 days short of 55 years old, but the court was unable to determine whether the ALJ was aware of the potential borderline situation. Id. at 790-91. See also Grimes v. Berryhill, CIV-17-257-D, 2018 WL 1278583, at *1 (W.D. Okla. Feb. 15, 2018) (R&R), adopted CIV-17-257-D, 2018 WL 1278207 (W.D. Okla. Mar. 12, 2018) (reversing and remanding when ALJ failed to consider borderline age situation where plaintiff was four months and twenty days from turning 50 and he asserted he would be found disabled under application of the higher age category); Wilson v. Comm'r of Soc. Sec. Admin., CIV-16-464-BMJ, 2017 WL 722052, at *3-4 (W.D. Okla. Feb. 23, 2017) (reversing and remanding based on the ALJ's failure to consider borderline age situation where the plaintiff was five and a half months from turning 55 and application of the advanced age category indicated the plaintiff might be found disabled); Benson v. Colvin, CIV-15-0428-HE, 2016 WL 4690415, at *5 (W.D. Okla. Sept. 7, 2016) (holding the ALJ erred by failing to discuss borderline age where the plaintiff was four months and four days from age 50 and a disability finding may result from application of closely approaching advanced age category); Noteware v. Astrue, CIV-10-912-HE, 2011 WL 3651295, at *5-6 (W.D. Okla. Aug. 18, 2011) (remanding where ALJ did not properly consider that claimant was four months short of the next age category).
As previously noted, on the date of the ALJ's decision, Plaintiff had only five months and four days until he turned 55. Under the governing Social Security Administration regulations and relevant case law, the ALJ should have considered whether Plaintiff was in a borderline age situation and whether to apply the "advanced age" category in determining disability, instead of the "closely approaching advanced age" category. See 20 C.F.R. § 404.1563(b). But the ALJ's decision gives no indication he considered Plaintiff's age on the date of the decision when choosing which age category to apply at step five. Instead, the ALJ stated only that Plaintiff was "51 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date." AR 28 (emphasis added). Thus, it appears the ALJ erred by using Plaintiff's age on the date of disability onset rather than his age at the date of decision.
Additionally, a remand is required because the ALJ's decision fails to reflect he was "even aware" of the borderline situation. See Byers, 506 F. App'x at 791. As the Tenth Circuit explained in Daniels, "[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." Daniels, 154 F.3d at 1133-34 n.5. And as explained in Byers, where the plaintiff was slightly further from advanced age than here, "[t]hus, a remand is in order because [the court] cannot tell whether the ALJ would have reached the same result by considering that [plaintiff] was five-and-a-half months short of advanced age." Byers, 506 F. App'x at 791. Accordingly, because the ALJ erred both in considering Plaintiff's age at the alleged onset date and in failing to recognize and consider a borderline age situation, substantial evidence does not support the ALJ's finding as to applicable age category.
2. At step five, it is the Commissioner's burden to determine which age category to apply
Defendant acknowledges that "there was a borderline age situation" and "the ALJ should have explained his consideration of the borderline age situation but did not." Def.'s Br. at 12. Defendant, however, asserts that the error was harmless, arguing that it was "Plaintiff's burden to establish vocational adversities justifying application of the higher age category." Id. Relying on Hearings and Appeals Litigation and Law Manual ("HALLEX"), Defendant states that the agency "does not automatically apply the higher age category" but only does so if a claimant's vocational factors "are 'more adverse under the criteria of each rule, or whether there is an additional element(s) present that seriously affects a claimant's ability to adjust to other work.'" Id. at 13 (quoting HALLEX I-2-2- 42(C)(2)). Defendant then asserts that "Plaintiff has made no real attempt to argue how his vocational factors are 'more adverse.'" Id.
In Daniels, the Tenth Circuit addressed the Commissioner's argument that plaintiff "had the burden of showing he should be classified in the higher age bracket, and that he failed to meet this burden." Daniels, 154 F.3d at 1133. In rejecting that argument, the court found that the Commissioner's position "ignores" the agency's regulatory statement that it "will not apply the age categories mechanically in a borderline situation." Id. at 1134 (citing 20 C.F.R. § 404.1563(a), which is now found at .1563(b)); see 20 C.F.R. § 404.1563(b).
Applied to borderline situations, this position essentially places the burden on a claimant to prove why the grids should not be applied mechanically. Nothing in § 404.1563[b] supports this position. The regulation provides that once it is determined that a claimant is in a borderline situation . . ., "We"—meaning the Social Security Administration—"will not apply these age categories mechanically." The Commissioner's argument rewrites the regulation to say essentially that "in borderline situations, we will allow you—the claimant—to prove why the grids should not be applied mechanically." The plain language of the regulation does not allow this interpretation.Daniels, 154 F.3d at 1134. Moreover, as the Daniels court further admonished, "placing the burden on the Commissioner of determining in the first instance what age category to apply is consistent with the Commissioner's existing burdens. Application of § 404.1563[b] is a step-five issue, and the burden is generally on the Commissioner at step five." Id.
And the Daniels court continued, "[a]dditionally, . . .it is the Commissioner's burden to show that a claimant's characteristics precisely match those of the grids." "Failing to consider the effect of a borderline situation . . . precludes application of the grids as a basis for finding no disability, because the Commissioner will not have shown that the claimant's characteristics precisely match the criteria of a particular rule." Id. at 1134-35 (internal quotation marks and citation omitted). As such, the Tenth Circuit has squarely rejected the argument Defendant presents today and Defendant's arguments do not persuade the undersigned to disregard binding authority.
To the extent Defendant might argue that the ALJ did not make a Grid-based determination because he incorporated VE testimony, see AR 28-29, the undersigned notes that the ALJ concluded his decision by stating that "[a] finding of 'not disabled' is therefore appropriate under the framework" of the Grids. See AR 29; Byers, 506 F. App'x at 791 n.1 (finding that similar language indicated that the ALJ relied on the Grids for his decision, despite incorporating VE testimony at step five). --------
B. Additional Arguments
The ALJ's errors in evaluating Plaintiff's age warrant a reversal of the Commissioner's decision and a remand for further administrative proceedings. In light of the recommendation for reversal and remand, it is not necessary to review Plaintiff's second argument that the ALJ did not adequately evaluation Plaintiff's mental limitations. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) ("We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand."). V. Recommendation
In view of the foregoing findings, it is recommended that judgment enter REVERSING and REMANDING the decision of the Commissioner for further administrative proceedings. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or before November 26th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation will waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 12th day of November, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE