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Angela J. Brown v. Michael J. Astrue


May 1, 2012


The opinion of the court was delivered by: Rufe, J.


Plaintiff Angela Brown filed this action pursuant to 42 U.S.C. § 504(g) and § 1383(c)(3), seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying her claim for supplemental security income ("SSI") under Title XVI of the Social Security Act. Ms. Brown seeks reversal of the Commissioner's decision on the grounds that the Administrative Law Judge ("ALJ") did not apply the proper legal standards and the ALJ's finding that Ms. Brown is not disabled was not based on substantial evidence.

Magistrate Judge Timothy Rice issued a Report and Recommendation ("R&R") recommending that the case be remanded to the Commissioner for further review for failure to make factual findings regarding Plaintiff's ability to find work due to her age, which was close to the advanced age category. The Commissioner has filed objections to the R&R, arguing that the Commissioner's regulations and SSA policy do not require an ALJ to discuss borderline age situations in the absence of evidence justifying the use of a higher age category. Upon this Court's careful, independent consideration of the administrative record, the parties' submissions, and the applicable law, the Court has determined that the ALJ's decision was not supported by substantial evidence. The Commissioner's objections to the R&R will be overruled, and the case will be remanded to the Commissioner for further proceedings.


Plaintiff filed an application for SSI on November 2, 2006, claiming that she had been disabled since March 1, 2003. *fn1 On December 6, 2007, SSA denied Plaintiff's application. *fn2 On October 10, 2008, the ALJ held a hearing and considered testimony from Plaintiff and Gary Young, a vocational expert. *fn3 Plaintiff's application was denied on October 21, 2008, four months and one week (130 days) before her 55th birthday. *fn4

After exhausting her administrative appeals, Plaintiff filed suit in this Court, contending that 1) the ALJ failed to apply the regulations and procedures pertaining to borderline age situations, and 2) the ALJ's finding that Plaintiff does not have a severe mental impairment was not supported by substantial evidence. The Magistrate Judge agreed with the first of these points and recommended remand to the Commissioner for further evaluation of Plaintiff's application.


Disability determinations before an ALJ "involve shifting burdens of proof." *fn5 The claimant initially satisfies the burden of showing she is disabled by demonstrating that she cannot return to her customary occupation. *fn6 Once the claimant's initial burden is met, the burden shifts to the Commissioner, who must show that the claimant can still engage in substantial gainful activity. *fn7

This burden-shifting process follows a five-step sequential evaluation process promulgated by the SSA. *fn8 At step one, the ALJ must determine whether the applicant is currently engaging in "substantial gainful activity"; if the ALJ so finds, the claim is denied. *fn9 In step two, the ALJ must determine whether the claimant is suffering from a severe impairment. *fn10

If the claimant suffers from a severe impairment, the ALJ at step three compares the claimant's impairment to a list of impairments presumed to preclude any gainful work, which are listed in Part 404, Subpart P, Appendix 1 of the applicable regulations ("listed impairments"). *fn11 If the applicant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five. At step four, the ALJ must determine whether the applicant has the residual functional capacity to perform past relevant work. *fn12 If the applicant proves she cannot resume her former occupation, the burden shifts to the Commissioner at step five, where the Commissioner must demonstrate that the applicant is capable of performing other work available in the national economy. *fn13 At this stage, the Commissioner takes into account not just residual functional capacity, but also age, education, and language ability, and past vocational training. If the Commissioner cannot demonstrate that the applicant is capable of other available work, the ALJ must find that the applicant is disabled.

A court reviewing a Social Security case must base its decision on the record of the administrative proceedings and the pleadings of the parties. *fn14 The court's review of legal issues is plenary, but its factual review is limited. *fn15 The court must determine whether the record contains substantial evidence to support the ALJ's factual findings, and whether the Commissioner applied the proper legal standards in making its decision. *fn16 "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." *fn17 The amount required is more than a mere scintilla, but less than a preponderance of the evidence. *fn18 If the ALJ's factual findings were determined according to the correct legal standards and are supported by substantial evidence, the court is bound by them, "even if [it] would have decided the factual inquiry differently." *fn19

A district court must review de novo those portions of a magistrate judge's report and recommendation to which a party has objected. *fn20 The district court may in its discretion "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge." *fn21


The ALJ found that Plaintiff has not engaged in substantial gainful activity since the date of her application. *fn22 The ALJ found that Plaintiff has a number of non-severe impairments, including gastroesophageal reflux disease, hypertension, and chronic obstructive pulmonary disease. *fn23 The ALJ also found that Plaintiff has osteoarthritis and cervical cancer, which are severe impairments but which do not meet or medically equal one of the impairments listed in 20 CFR Part 404, Appendix 1. *fn24 In determining that Plaintiff has the residual functional capacity ("RFC") to perform a full range of light work, the ALJ stated that the evidence did not substantiate Plaintiff's complaints of severe arthritic pain throughout her body, and restricting her to light work would adequately take into account her arthritic problems. *fn25 Because Plaintiff had no work experience in the preceding fifteen years, the ALJ found that Plaintiff has no past relevant work. *fn26

The ALJ then considered whether Plaintiff could perform any jobs that exist in significant numbers in light of her residual functional capacity, age, education, and work experience. The ALJ determined that Plaintiff, who was born on February 28, 1954, was "an individual closely approaching advanced age," but the ALJ did not undertake a borderline age situation analysis. *fn27

The ALJ noted that Plaintiff has a twelfth grade education and is able to communicate in English. *fn28 Finally, the ALJ found that the transferability of job skills was not an issue because Plaintiff did not have past relevant work. *fn29 The ALJ concluded that there are jobs that exist in significant numbers that Plaintiff can perform and that Plaintiff therefore is not disabled. *fn30

The Magistrate Judge concluded that the ALJ was required to consider Plaintiff's borderline age situation in the analysis of disability. SSI claimants are placed into one of three categories: younger person (under age 50), person closely approaching advanced age (age 50-55), and person of advanced age (age 55 and older). *fn31 For a person closely approaching advanced age, the ALJ will consider that "age along with a severe impairment(s) and limited work experience may seriously affect [claimant's] ability to adjust to other work." *fn32 For a person of advanced age, the ALJ will consider that age on its own "significantly affects a person's ability to adjust to other work." *fn33

Before it was amended in 2000, § 404.1563(a) of the regulations provided that the ALJ would not apply the age categories "mechanically in a borderline situation." *fn34 In Kane v. Heckler, the Court of Appeals for the Third Circuit held that an ALJ erred in failing to consider § 404.1563(a) where the claimant was 48 days shy of his 55th birthday and the claimant's age category had a decisive impact on the disability determination. *fn35 In 1993, the Appeals Council adopted Hearings, Appeals and Litigation Law ("HALLEX") manual guideline § II-5-3-2, which sets forth the SSA's policies for borderline age situations. *fn36 In 2000, the regulations were amended by moving the "borderline" language in §§ 404.1563 and 416.963 from subsection (a) to subsection (b), and by adding a description of the borderline age analysis that reaffirmed that the age categories would not be applied mechanically. *fn37

There is no bright-line rule for determining what constitutes a borderline age. *fn38 In Lucas v. Barnhart, decided after the regulations were amended, the Court of Appeals held that 106 days is "within a few months." *fn39 In Roberts v. Barnhart, the Court of Appeals noted that no authority supported extending borderline age determinations to claimants five to six months away from their relevant birthdays, but in that case, "substantial evidence, including the unrefuted evidence provided by the vocational expert, support[ed] the ALJ's conclusion that [the claimant's] age was not a factor significantly limiting her vocational adaptability." *fn40

Plaintiff falls within the gray area between Lucas and Roberts. At the time of the ALJ's decision Plaintiff was less than five months from the "advanced age" category, satisfying Roberts's limitation, and was 130 days from the relevant birthday, only 24 days more than the claimant in Lucas. *fn41 The Commissioner does not object to the classification of Plaintiff's age as borderline; however, the Commissioner disagrees with the Magistrate Judge's finding that the ALJ was required to discuss Plaintiff's borderline age under the regulations. *fn42

The ALJ found that Plaintiff had a high school education, had no prior relevant work experience, and could perform only light work. Had Plaintiff been placed in the "advanced age" category, the ALJ could have determined, pursuant to § 202.04, that Plaintiff was disabled and entitled to benefits. *fn43 Thus, placing Plaintiff in a higher age category could have changed the outcome of this case.

When a record does not contain factual findings relevant to the § 404.1563(b) inquiry into whether a claimant presents a borderline age situation, the determination of non-disability is unsupported by substantial evidence and the case must be remanded. *fn44 The ALJ's silence makes it "impossible to discern whether the ALJ properly applied section 404.1563(b)." *fn45 The Commissioner contends, however, that HALLEX II-5-3-2 instructs the ALJ to use chronological age when the claimant fails to show sufficient additional vocational adversities to justify use of a higher age category, and the ALJ has the discretion to choose whether to discuss a borderline age determination.

The Commissioner's arguments are unpersuasive. Dispensing with the ALJ's need to explain the borderline age determination would be contrary to Third Circuit cases and make impossible the task of a reviewing court. To the extent HALLEX § II-5-3-2 requires an explanation only upon the showing of an additional vocational adversity, it is not entitled to the Court's deference. *fn46 In addition, Plaintiff has pointed to vocational adversities that may warrant the use of a higher age category. HALLEX § II-5-3-2 provides that claimants "must show progressively more additional vocational adversity(ies)" that would justify use of a higher age category. *fn47 Plaintiff's lack of a work history, as found by the ALJ, constitutes such an adversity. *fn48 Plaintiff also has numerous non-severe impairments that may constitute additional vocational adversities. *fn49 The case will be remanded so that the ALJ may consider all of these factors.

Finally, the vocational expert did not provide substantial evidence to support the ALJ's finding of no disability without consideration of borderline age. "Even if factually related, the issue of ability to adjust as an adjunct of age is legally and analytically distinct from the inquiry into whether one can perform a significant number of 'light' jobs in the national economy." *fn50

Here, the expert testified to the number of jobs that exist nationally but not to Plaintiff's ability to adapt to the requirements of a new job at the age of almost 55. *fn51 Because the Court finds that the ALJ failed to properly discuss Ms. Brown's borderline age situation, the case will be remanded for further proceedings.

IV. Conclusion

For the foregoing reasons, this Court overrules the Commissioner's objections to the R&R, grants Plaintiff's request for review, and remands for further consideration pursuant to the forth sentence of 42 U.S.C. § 405(g). An appropriate order follows.

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