GARY M. PURCELL, Magistrate Judge.
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 under Title II of the Social Security Act, 42 U.S.C. § 1382. Defendant 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 the Commissioner's decision be reversed and remanded for further administrative proceedings.
Plaintiff applied for disability benefits on August 7, 2012. AR 135-38. In his application, Plaintiff alleged he became disabled on July 27, 2012, due to degenerative lumbar spine — IVDS sciatic nerve dysfunction, tinnitus, bladder dysfunction, right lower extremities partial paralyzation, post lumbar surgery with IVDS, and sleep apnea. AR 135, 363. The Social Security Administration denied Plaintiff's application on December 5, 2012,
Plaintiff appeared without representation and testified at an administrative hearing conducted on October 30, 2014, before an Administrative Law Judge (ALJ). AR 32-59. On November 6, 2015, the ALJ issued a decision in which she found Plaintiff was not disabled within the meaning of the Social Security Act. AR 13-27. 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 July 27, 2012. AR 18. At the second step, the ALJ found Plaintiff had severe impairments of status post bilateral L5-S1 laminectomy, discectomy, and foraminotomy, diabetes mellitus, diabetic neuropathy, right shoulder degenerative joint disease, and obesity.
At step four, the ALJ found Plaintiff had the residual functional capacity (RFC) to perform sedentary work except he can lift, carry, push and pull ten pounds occasionally and less than ten pounds frequently, and stand and walk for two hours and sit for six hours of an eight hour workday. AR 20. Additionally, Plaintiff cannot climb ladders, ropes, or scaffold, cannot balance, can occasionally climb stairs and ramps and occasionally kneel, crouch, crawl, and stoop.
After determining Plaintiff could not perform his past relevant work, the ALJ reached the final step of the required sequential analysis. AR 25. At step five, relying on the testimony of a vocational expert (VE) who testified at the administrative hearing, the ALJ found Plaintiff was capable of performing jobs that existed in the national economy, including jobs as a table worker, callout operator, and charge account clerk. AR 26. Based on these findings, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from July 27, 2012 through the date of the decision. AR 26-27.
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).
Plaintiff raises two issues on appeal. First, Plaintiff contends the ALJ failed to consider that Plaintiff was in a borderline age situation when she made her decision. Plaintiff's Opening Brief (Doc. # 16) at 6-11. Second, Plaintiff argues the ALJ failed to adequately evaluate Plaintiff's disability rating from the Veteran's Administration. Doc. #16 at 11-14.
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) (citation and quotations omitted). 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, quotations, 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 her 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 her 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).
Plaintiff asserts the ALJ failed to consider whether his chronological age placed him on the borderline of a person closely approaching advanced age. 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 fiftyfive and over). 20 C.F.R. § 404.1563. For this case, the relevant categories are younger person and person closely approaching advanced age. The agency recognizes advanced age is "an increasingly limiting factor in [a claimant's] ability to make . . . an adjustment [to other work.]" 20 C.F.R. § 416.963(a). The age category has distinct consequences. In particular, the agency recognizes, "If you are closely approaching advanced age . . . we will consider that your age along with a severe impairment(s) and limited work experience may seriously affect your ability to adjust to other work." 20 C.F.R. § 416.963(d).
To determine which age category applies, the agency focuses on the claimant's age when he or she "last met the insured status requirement before the date of adjudication. . . ." SSR 83-10, 1983 WL 31251, at *8;
20 C.F.R. § 416.963(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 closely approaching advanced age category. Doc. #16 at 9-10.
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As previously noted, on the date of the ALJ's decision, Plaintiff had only four months and 20 days until he turned 50. Under the governing Social Security Administration regulations and relevant case law applying the same, the ALJ should have considered whether Plaintiff was in a borderline age situation and whether to apply the "closely approaching advanced age" category in determining whether he was disabled. 20 C.F.R. § 416.963(e). The ALJ's decision gives no indication she considered Plaintiff's age on the date of the decision when choosing which age category to apply at step five.
Instead, the ALJ made only two references to Plaintiff's age. First, she stated that Plaintiff was "a forty-nine year old man." AR 20. Second, she stated, "The claimant was born on March 26, 1966 and was 46 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date." AR 25 (emphasis provided). 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.
Further, a remand is required because the ALJ's decision fails to reflect she was even aware of the borderline situation.
Relying on Hearings and Appeals Litigation and Law Manual ("HALLEX"), HALLEX II-5-3-2, the Commissioner essentially argues that any error in not explicitly discussing the borderline age situation was harmless because application of the older age category was unwarranted.
If the answer to both of these questions is "yes," then the ALJ uses a "sliding scale" approach for determining a claimant's age category. "Under this approach, the claimant must show progressively more additional vocational adversity(ies)—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." Such vocational adversities may include additional impairments which limit a claimant's remaining occupational base, a marginal ability to communicate in English, or a history of unskilled work in one isolated industry or work setting. "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."
The Commissioner insists the record does not support a finding of additional vocational adversities. Doc. #20 at 11-14. To the contrary, however, the ALJ found several exertional limitations that limited Plaintiff's ability to perform the requirements of sedentary work. AR 20. Moreover, the record does not indicate the ALJ ever considered "additional vocational limitations" and whether they warranted application of the next age category. The Court cannot conduct such analysis for the first time on appeal.
Furthermore, the Court finds that any error in not applying the next age category is not necessarily harmless. The ALJ found Plaintiff has at least a high school education, and that his past relevant work as a configuration of military aircraft and as an assembler of aircraft structures is skilled work. AR 25. The ALJ further found Plaintiff could not perform his past relevant work and that he had an RFC for sedentary work with additional limitations. AR 20, 25. The ALJ deemed the issue of transferability of job skills immaterial to the determination of disability, stating, "Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is `not disabled,' whether or not the claimant has transferable skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2)." AR 25.
The Grids indicate that if Plaintiff were a person closely approaching advanced age, the ALJ's findings might warrant a determination of disability.
The ALJ's errors in evaluating the critical age in this case 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 committed legal error by failing to adequately evaluate Plaintiff's VA disability rating.
In view of the foregoing findings, it is recommended that judgment enter REVERSING the decision of the Commissioner and REMANDING the case to the agency for further administrative proceedings consistent with the findings herein. 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
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
