WALLACE CAPEL, JR., Chief Magistrate Judge.
Miranda Christine Langford ("Langford" or "Plaintiff") filed an application for a period of disability and disability insurance benefits on July 7, 2015, alleging disability beginning on July 24, 2008. R. 23, 141-143. The application was denied at the initial administrative level. R. 100. Plaintiff then requested and received a hearing before an Administrative Law Judge ("ALJ") on March 10, 2017. R. 37, 74-75. Following the hearing, the ALJ issued an unfavorable decision, and the Appeals Council denied Plaintiff's request for review on March 12, 2018. R. 1-4, 20-22. The ALJ's decision consequently became the final decision of the Commissioner of Social Security ("Commissioner").
The Court's review of the Commissioner's decision is a limited one. The Court's sole function is to determine whether the ALJ's opinion is supported by substantial evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
"The Social Security Act mandates that `findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.'" Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the Commissioner's decision conclusive if it is supported by substantial evidence. Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing Richardson v. Perales, 402 U.S. 389 (1971)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
If the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the evidence preponderates against the Commissioner's findings. Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The Court "may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]," but rather it "must defer to the Commissioner's decision if it is supported by substantial evidence." Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth, 703 F.2d at 1239).
The Court will also reverse a Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption that the Commissioner's conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).
The Social Security Act's general disability insurance benefits program ("DIB") provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a). The Social Security Act's Supplemental Security Income ("SSI") is a separate and distinct program. SSI is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate programs, the law and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the purpose of determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir. 1986). Applicants under DIB and SSI must prove "disability" within the meaning of the Social Security Act which defines disability in virtually identical language for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a), 416.905(a). A person is entitled to disability benefits when the person is unable to
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§ 404.1520, 416.920 (2010).
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of qualifying for disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual Functional Capacity ("RFC"). Id. at 1238-39. RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines ("grids") or hear testimony from a vocational expert ("VE"). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of "Disabled" or "Not Disabled." Id.
Plaintiff was fifty-four years old on the date of the hearing before the ALJ. Doc. 11 at 1. Plaintiff left school after the seventh grade. R. 45. Following the administrative hearing, and employing the five-step process, the ALJ found at Step One that Plaintiff "has not engaged in substantial gainful activity since July 7, 2015, the application date[.]" R. 25. At Step Two, the ALJ found that Plaintiff suffers from the following severe impairments: "anxiety, hypothyroidism, and hypertension." R. 25. At Step Three, the ALJ found that Plaintiff "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments[.]" R. 26. Next, the ALJ articulated Plaintiff's RFC as follows:
R. 27. At Step Four, having consulted with a VE, the ALJ concluded that Plaintiff "has no past relevant work." R. 32. The ALJ next concluded, at Step Five, that "there are jobs that exist in significant numbers in the national economy that the claimant can perform." R. 32. Based upon the testimony of the VE, the ALJ identified the following as representative occupations: "mail clerk," "ticket seller," and "garment sorter." R. 32-33. Accordingly, the ALJ concluded that Plaintiff "has not been under a disability [. . .] since July 5, 2015, the date the application was filed," through the date of this decision. R. 33.
Plaintiff presents two issues for the Court to consider in its review of the Commissioner's decision: (1) "Whether the ALJ properly evaluated the Claimant's impairments on her ability to perform sustained work on a regular and continuing basis; i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule as required by SSR 96-8p;" and (2) "Whether the ALJ erred in mechanically applying the age categories and finding the Claimant to be closely approaching advanced age rather than advanced age." Doc. 11 at 5.
Although Plaintiff raises two issues on appeal, since the Court's decision related to the ALJ's consideration of the grids issue is dispositive, the Court confines its review to the application of the age criteria.
Plaintiff argues that the "ALJ improperly failed to recognize that the Claimant would shortly be of advanced age under governing regulations and her finding that the Claimant could perform a reduced range of light work was questionable in view of the Claimant's residual functional capacity." Doc. 11 at 8. Langford was born on June 27, 1962. Thus, she was 46 years old (defined as a younger individual age; 18-49) on the alleged onset date, 53 years old (defined as closely approaching advanced age; 50-54) on the date of the application, and 54 years old at the time of the hearing before the ALJ. R. 32; Doc. 11 at 7. However, on the date of the hearing, Langford was three months short of her next birthday, on which she would turn 55 years old (defined as advanced age; 55 or older). Doc. 11 at 7. In her opinion, the ALJ noted "[t]he claimant was born on June 27, 1962 and was 46 years old, which is defined as a younger individual age 18-49, on the alleged onset date. She subsequently changed age category to closely approaching advanced age (20 CFR 416.963) on the date the application was filed." R. 32. Plaintiff asserts that the ALJ failed to make a factual determination as to the appropriate age category, and this failure amounts to "mechanically apply[ing] the age categories, an action prohibited by 20 CFR 404.1563(a)." Doc. 11 at 7.
The Government, on the other hand, avers that the ALJ "did not rely exclusively on the grids and the VE's testimony provides substantial evidence to support the ALJ's finding that Plaintiff could perform other work and was not disabled." Doc. 12 at 6-7. Specifically, they argue that after the ALJ looked at the grids to determine if it might direct a conclusion of disabled, the ALJ found that Langford could "perform light work, she was person closely approaching advanced age (age 50-54), she had a limited education and able to communicate in English, she had no past relevant work, and transferability of skills was not material." Doc. 12 at 7. The ALJ further "recognized that Plaintiff had additional exertional and non-exertional limitations that precluded using the grids to direct a finding of disabled or not disabled, and she could use the grids only as a framework for her decision." Id. Next, the Government argues that, assuming the Court decides that this is a borderline age situation, Langford should not be mechanically placed in the older age category, and that she failed to proffer "evidence of additional vocational adversities that would require application of the older age category." Doc. 12 at 9-10.
The Code of Federal Regulations defines "age" as the claimant's "chronological age." 20 C.F.R. § 404.1563(a). In determining if a claimant is disabled under § 404.1520(g)(1), the Commissioner "will" consider a claimant's "chronological age in combination with [the claimant's] residual functional capacity, education, and work experience." Id. In determining the extent to which age affects, the claimant's ability to adjust to other work, the Commissioner will "consider advancing age to be an increasingly limiting factor in the person's ability to make such an adjustment." Id. The regulations state that if a claimant is "closely approaching advanced age (age 50-54), [the Commissioner] will consider that [the claimant's] age along with a severe impairment(s) and limited work experience may seriously affect [the claimant's] ability to adjust to other work" and that the Commissioner considers that "at advanced age (age 55 or older), age significantly affects a person's ability to adjust to other work." 20 C.F.R. § 404.1563(d)-(e) (citing § 404.1568(d)(4)). The Commissioner will use the age category that applies at the relevant time period; however, the age categories will not be applied mechanically in borderline situations. 20 C.F.R. § 404.1563(b) 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, we will consider whether to use the older age category after evaluating the overall impact of all the factors of [the claimant's] case." Id.
In the Hearings, Appeals, and Litigation Law Manual ("HALLEX") published by the Social Security Administration's Office of Disability Adjudication and Review ("ODA"), which contains instructions and guiding principles used by employees of ODA, including the ALJs and Appeals Council, in processing and adjudicating claims, the ODA provides a two-part test in interpreting a borderline age situation. In Section II-5-3-2, the HALLEX provides:
Appeals Council Interpretation II-5-302(A) (effective Nov. 2, 1993). Section II-5-3-2 also notes that the guidelines should be considered "whenever the age category changes within a few months after the alleged onset date, the date last insured (or the prescribed period), or the date of the ALJ's decision." Id.; see Crook v. Barnhart, 244 F.Supp.2d 1281, 1283 (N.D. Ala. 2003) (citing Appeals Council Interpretation II-5-302 (effective March 16, 1979) ("Generally, establishing an onset date up to six months prior to attainment of the specified age would be reasonable.")).
Here, Langford was born on June 27, 1962, and changed age categories from "younger individual" at the time of her alleged onset date to "closely approaching advanced age" by the date that the application was filed. R. 32. The ALJ issued her decision on May 24, 2017, at which time Langford was approaching advanced age. Although Plaintiff argues that at the time of the hearing she was 3.5 months short of her 55th birthday, the relevant inquiry is her age at the time of the ALJ's decision. See Crook, 244 F. Supp. 2d at 1283 (quoting Russell v. Commissioner of Social Security, 20 F.Supp.2d 1133 (W.D. Mich. 1998) ("For purposes of determining age under the grids, `the claimant's age as of the time of the
At step five of the ALJ's decision, the ALJ classified Langford as closely approaching advanced age, based on her age on the date the application was filed. R. 32 ("The claimant was born on June 27, 1962 and was 46 years old, which is defined as a younger individual age 18-49, on the alleged onset date. She subsequently changed age category to closely approaching advanced age (20 CFR 416.963) on the date the application was filed."). The ALJ failed to mention Langford's age at any other point in the decision, and she never acknowledged that this was a borderline age situation with respect to being advanced age or provided any analysis for the court to determine if she even considered whether Langford should be classified as "closely approaching advanced age" or "advanced age." It is clear from the record that the ALJ based her decision on Langford's age at the time of her application, not the time of the ALJ's decision.
While the ALJ has no duty to fully explain her use of a claimant's chronological age, the ALJ is certainly required to identify a borderline age situation where it exists and provide an analysis sufficient enough for the Court to deduce that it was at least part of the ALJ's consideration. See Appeals Council Interpretation II-5-302(A) ("The adjudicator need not explain his or her use of the claimant's chronological age."); but see Bell v. Colvin, No. CV 115-090, 2016 WL 3906537, at *3-4 (S.D. Ga. June 21, 2016), report and recommendation adopted, No. CV 115-090, 2016 WL 3892431 (S.D. Ga. July 14, 2016) ("The ALJ never acknowledged this is a borderline case, and the decision contains no indication this is a borderline case or analysis on whether it would be appropriate to classify [the plaintiff] as closely approaching advanced age."). The Court finds that the ALJ failed to use the Plaintiff's age at the time of her decision. As a result, she wholly failed to recognize that this was a borderline age situation between "closely approaching advanced age" or "advanced age" at the time of the decision, but rather noted the Plaintiff's movement from the "young person" age category to the "closely approaching advanced age" category from the onset date to the application date.
The Court is hard pressed to find that this omission is simply harmless error where the combination of Langford's age at the time of the decision, residual functional capacity, education, and work experience, as set forth by the ALJ, would clearly present a borderline age situation that could result in a finding of disabled under the grids. See Rule 202.01, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (claimant of advanced age, limited to light work, with limited or less education, and unskilled or no work skills is disabled). Although the ALJ may still find that substantial evidence exists to not exclusively rely on the grids where additional limitations are present, the ALJ must at a minimum recognize Plaintiff's correct age at the applicable time period and review the correct rule under 20 C.F.R. Pt. 404, Subpt. P, App. 2. To the contrary, this Court finds this error to be prejudicial because the grids direct a finding of "disabled" for a person of advanced age, along with all of the other limitations identified by the ALJ.
As a result, the Government's arguments are unavailing. First, the Government argues that after the ALJ looked at the grids to determine if they might direct a conclusion, the ALJ then found that Langford could "perform light work, she was [a] person closely approaching advanced age (age 50-54), she had a limited education and [is] able to communicate in English, she had no past relevant work, and transferability of skills was not material." Doc. 12 at 7. Next, the ALJ "recognized that Plaintiff had additional exertional and non-exertional limitations that precluded using the grids to direct a finding of disabled or not disabled, and she could use the grids only as a framework for her decision." Doc. 12 at 7. While the Court agrees with the Government's claim, as previously discussed, the ALJ erred early on in the analysis by failing to recognize Plaintiff's age during the relevant period and review the correct rule under the grids to make an accurate determination. Based on the ALJ's opinion, it is clear the ALJ reviewed the Langford's age and grids applicable to her based on her age at the time the application was filed, and not at the time of the decision, and wholly failed to recognize the borderline age situation that had arisen at that time. Had the ALJ done so, the Government's argument would hold more weight, and the Court would certainly have recognized the ALJ's ability to use the grids as a framework in the presence of additional exertional or non-exertional limitations.
Next, the Government argues that, assuming the Court decides that this is a borderline age situation, Langford should not be mechanically placed in the older age category, and that she failed to proffer "evidence of additional vocational adversities that would require application of the older age category." Doc. 12 at 9-10. This argument has already failed within this circuit under the present circumstances. In Bell v. Colvin, the court rejected the Government's attempt to shift the burden:
Bell, 2016 WL 3906537, at *4. Similar to the facts in Bell, here, the Government does not deny that a correct application of the grids in this clear borderline age situation would direct a finding of "disabled" based on Langford's age, RFC for less than light work, limited or less education, and unskilled or no work skills, but rather claims the burden is on Langford to show "evidence of additional vocational adversities." As held in Bell, this Court also finds that this argument improperly shifts the ALJ's burden onto the claimant under the facts presented here, and it is just as clear here as it was in Bell that the ALJ only considered Langford's age at the time of the application date.
The Government relies on Miller v. Commissioner of Social Security, which certainly provides an insightful discussion on mechanistically applying the grids; however, the facts of the present case diverge. 241 F. App'x 631, 632 (11th Cir. 2007). In Miller, although the ALJ did not explicitly refer to a "borderline age situation," the ALJ recognized that the plaintiff was 54 years old and a "person closely approaching advanced age," a high school graduate, and had work skills that were transferrable to other semiskilled jobs. Id. at *1-2. The ALJ noted that even if the plaintiff "were able to perform a full range of light work, a finding of `not disabled' would be required;" however, the ALJ found that the plaintiff's "ability to perform a full range of light work was impeded by his additional exertional and non-exertional limitations." Id. at *2.
Aside from the fact that the ALJ recognized that the plaintiff was 54 years old, another distinction is that the ALJ's finding that his work skills were transferrable to other semiskilled work played an important role in the ALJ's "not disabled" finding. In Miller, had the ALJ designated the plaintiff as advanced age, all other factors remaining constant, the plaintiff would still be considered "not disabled" under the grids. Id. ("Under Rule 202.06, a person of advanced age, who is a high school graduate or more, where that educational level does not provide for direct entry into skilled work, and has skilled or semi-skilled skills that are not transferable is categorized as "disabled." 20 C.F.R. pt. 404, subpt. P, app. 2, table no. 2, § 202.06. However, a person with those same characteristics, except that his skills are transferable, is categorized as "not disabled." Id. at § 202.07."). The ALJ in Miller had found that the plaintiff's skill set was transferrable to other semiskilled jobs. Thus, the court held that substantial evidence supported the ALJ's finding that the plaintiff was "a person closely approaching advanced age," and to refute such a finding the plaintiff was required to "establish that his ability to adapt [to a new work environment] was less than the level established under the grids for persons his age, [proffering] evidence tending to establish that fact." Id. at 636. This is not the case in the instant matter. As stated, it is not disputed that had the ALJ used Langford's correct age and determined that she presented a borderline age situation, all other factors remaining constant, Lanford would be considered "disabled" under the grids. However, the Court does not have sufficient information to determine if substantial evidence supports the ALJ's finding due to the fact that she improperly used Langford's age as of the date of the application.
For the reasons set forth above, the ALJ's failure to consider the borderline age situation that existed at the time of the ALJ's decision constitutes reversible error. However, the Court's decision to remand this case "should in no way be construed as a comment as to which age category should be applied or whether Plaintiff is disabled as defined by the Social Security Act." Bell, 2016 WL 3906537, at *4. The case is being remanded to the ALJ for consideration of all the factors in Plaintiff's case and proper consideration of Plaintiff's age at the applicable point in time.
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the Court concludes that the ALJ's non-disability determination is not supported by substantial evidence or a proper application of the law. Accordingly, this case will be
Plaintiff is cautioned, however, that this Memorandum Opinion does not suggest Plaintiff is entitled to disability benefits. Rather, it speaks only to the process the ALJ must engage in and the findings and analysis the ALJ must make before determining whether Plaintiff is disabled within the meaning of the Social Security Act. Phillips v. Barnhart, 357 F.3d 1232, 1244 (11th Cir. 2004). A separate judgment will issue.
