JEFFREY COLE, United States Magistrate Judge.
Daniel Figueroa seeks review of the final decision of the Commissioner
Mr. Figueroa applied for DIB in October 2007, alleging that he became disabled at that time due to a heart condition, diabetes, arthritis, and high blood pressure. (R. 175). His application was denied initially and upon reconsideration. (R. 94-98, 103-106). Mr. Figueroa filed a timely request for hearing. An administrative law judge ("ALJ") convened a hearing on March 31, 2009, at which Mr. Figueroa, represented by counsel, appeared and testified. In addition, James Ratke appeared and testified as a vocational expert. (R. 60-91). On July 13, 2009, the ALJ found that Mr. Figueroa was not disabled because he retained the capacity to perform a limited range of sedentary work, which allowed him to do jobs that existed in significant numbers in the economy. (R. 47-56). This became the Commissioner's final decision when the Appeals Council denied Mr. Figueroa's request for review on January 25, 2011. (R. 1-4). Mr. Figueroa has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of this court pursuant to 28 U.S.C. § 636(c).
Mr. Figueroa was born on October 6, 1959. (R. 136). From 1990 until October 2007, he worked as a computer technician. The job required a fair amount of lifting of computers, printers, monitors, etc. (R. 164). Computer technician jobs are typically classified as medium work, but Mr. Figueroa's job fell into the heavy work category. (R. 22).
Mr. Figueroa's lead argument has to do with his age and the Commissioner's Medical-Vocational Guidelines or "Grid." The Grids reflect the Social Security Administration's determination that certain combinations of age, education, work experience, and exertional limitations direct a finding of either disabled or not disabled at step five of the disability analysis. 20 C.F.R. § 404.1569; 20 C.F.R. Pt. 404, Subpt. P., App. 2 § 200.00(a); Haynes v. Barnhart, 416 F.3d 621, 627-30 (7th Cir.2005). For example, in Mr. Figueroa's case, the ALJ used the Grid as a framework for her decision and also consulted a vocational expert. See Haynes, 416 F.3d at 628 (in "situations in which claimants fall between exertional levels, ... the ALJ must give consideration to the grids or use them as a framework.... consultation with a vocational expert may be helpful or even required."). Given that Mr. Figueroa was 48 years old as of his alleged onset date, had a high school education, and a capacity for a reduced range of sedentary work, the ALJ did not address the question of whether he had transferable work skills, but that was irrelevant given the other factors; she just assumed he did not. The ALJ pointed to Rule 201.21, which suggested a finding of "not disabled." (R. 55). The ALJ also relied on the vocational expert, who testified that an individual with Mr. Figueroa's vocational factors could be a receptionist (3700 jobs in the region), a general office clerk (2200 jobs), an order clerk (900 jobs), or an interviewer (2000 jobs). (R. 55).
Mr. Figueroa submits that the ALJ failed to follow the Commissioner's applicable regulation regarding his age. 20 CFR § 404.1563(b) provides:
For Mr. Figueroa, the ALJ applied the "younger individual" category — ages 45-49 — rather than the "closely approaching advanced age" category, which takes in ages 50-54 — even though he was less than three months from his 50th birthday at the time the ALJ made her decision. Thus, in his view, the ALJ should have given him the benefit of the doubt and put him in the "closely approaching advanced age." That would have meant that he was disabled under the Grid, assuming that he had no transferable work skills. At the very least, Mr. Figueroa contends that the ALJ should have discussed the decision to apply the age categories mechanically instead of resorting to the leeway envisioned by § 404.1563(b).
The Commissioner argues that the choice of whether to do so is a discretionary one reserved exclusively to the ALJ, and that the decision need not be explained or even noted by the ALJ. He relies on Anderson v. Bowen, 868 F.2d 921 (7th Cir.1989), where the Seventh Circuit, without extended discussion, understandably upheld an ALJ's decision not to treat a claimant, who had just three days earlier turned 49, as a "younger individual." Id. at 927. The factual setting of that case, involving as it did a person who was 362 days away from his 50th birthday cannot be compared to this one, where the claimant is less than two months away from turning 50. And, the result in Anderson was so obvious that there was no need for the court to engage in any analysis. Cf., Szmaj v. AT & T, 291 F.3d 955, 956 (7th Cir.2002). Hence, that case is not controlling. See, Cohens v. Virginia, 6 Wheat. 264, 19 U.S. 264, 399, 5 L.Ed. 257 (1821) (Marshall, C.J.); Illinois v. Lidster, 540 U.S. 419, 424, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004); Colon v. Option One Mortgage Corp., 319 F.3d 912, 921 (7th Cir.2003); All-Tech Telecom v. Amway Corp., 174 F.3d 862, 866 (7th Cir.1999); NLRB v. Keller-Crescent Co., 538 F.2d 1291, 1300 (7th Cir.1976). Cf., Republic of Austria v. Altmann, 541 U.S. 677, 733, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004).
While the applicable regulations give the ALJ discretion to be generous or exacting, the ALJs are instructed to "consider whether to use the older age." 20 C.F.R. § 404.1563(b). But there is disagreement among the Circuit Courts of Appeals about the meaning and requirements of the regulations. The Seventh Circuit has not expressed itself on this issue, having only adverted to the regulation in three opinions, one of which was Anderson. The somewhat divergent approaches to the problem are discussed in detail in Phillips v. Astrue, 671 F.3d 699 (8th Cir.2012):
Phillips v. Astrue, 671 F.3d at 704-06.
The Eighth Circuit in Phillips then concluded that:
See also, Anderson v. Astrue, 2011 WL 2416265, *11 (N.D.Ill.2011) (discussing the divergent approaches).
We turn then to what occurred in this case. The ALJ made no mention of what prompted her to select the category she applied to the plaintiff. (R. 55). Nor did she say explicitly that she had considered the applicable regulations before deciding into which age category the plaintiff would be slotted. The Commissioner's insistence that the ALJ "did not have to provide a length y explanation for why she declined to consider his age under the higher age bracket," (Defendant's Response, at 3) (emphasis supplied), while no doubt true, does not answer the more basic question of whether the ALJ had to state affirmatively that she had considered the discretionary choice allowed her by the regulation. Even Judge More in her dissent in Bowie concluded that while the ALJ need not explain his decision, even if it would be preferable, "at a minimum he has to note that he considered whether to do so in a non-mechanistic manner." In the instant case, there is no statement by the ALJ from which it can be determined that she even considered which category was the appropriate one in which to place the plaintiff. That alone, requires remand.
While, as noted above, some Courts of Appeals seem to say that it is enough for the ALJ to say that he has considered the competing alternatives — or even that he need not make any explicit assertion on that score — in the end they acknowledge that silence may require a remand. For example, despite its conclusion that there was no procedural requirement for an ALJ to make factual findings in borderline cases, Bowie acknowledged that ALJs must still "provide enough explanation of their overall disability determinations to assure reviewers that their decisions are supported by substantial evidence" and "lack of an explanation may in some cases mean that the ALJ's ultimate decision is not supported by sufficient evidence." 539 F.3d at 400-401.
The court said, "substantial evidence might be lacking where an ALJ, with no explanation, places a claimant in the "younger individual" age category who is 49 years and 11 months, unskilled, sedentary, barely literate, and whose only previous work experience was in the fishing
Moreover, without some minimal explanation of how a choice has been made, it would seem difficult if not impossible for there to be meaningful review of the age category determination. Indeed, it would appear to be impossible to determine whether there had even been the required exercise of discretion — assuming that determining which age category a claimant should be placed is a discretionary matter rather than one requiring factual findings to be made — the ALJ would have abused that discretion by failing to exercise it. Daniels v. Apfel, 154 F.3d 1129, 1134 (10th Cir.1998). Indeed, in all contexts, failure to exercise discretion, however uncanalized that discretion, is, itself, an abuse of discretion. See Champion v. Holder 626 F.3d 952, 956 (7th Cir. 2010); Miami Nation of Indians of Indiana, Inc. v. U.S. Dept. of the Interior, 255 F.3d 342, 350 (7th Cir.2001); United States v. West, 646 F.3d 745, 751 (10th Cir.2011); United States v. Mancari, 463 F.3d 590, 598 (7th Cir.2006); Porzondek v. Secretary of Health and Human Services, 1993 WL 15135, *2 (6th Cir.1993). Compare, I.N.S. v. St. Cyr, 533 U.S. 289, 307-308, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); George v. Kraft Foods Global, Inc., 641 F.3d 786, 796 (7th Cir.2011).
Further, the Seventh Circuit has long required that an ALJ build a "logical bridge" between the evidence and the ALJ's conclusion so that the claimant may be afforded meaningful review of the Commissioner's ultimate findings. See Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996); Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 569 (7th Cir.2003). And the Social Security Act broadly requires that any decision by the Commissioner of Social Security which involves a determination of disability and which is in whole or in part unfavorable to such individual shall contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based. 42 U.S.C. § 405(b)(1).
A number of courts in this district have held that ALJs are required to explain their age category determinations. See e.g., Anderson, 2011 WL 2416265, *11 (plaintiff a few months shy of 50);
Still, it must be acknowledged that the "Hearing, Appeals, and Litigation Law Manual" ("HALLEX") expressly provides that ALJ's need not explain their age category determination.. The HALLEX is meant to provide "guiding principles and procedures" and "serve[] as a reference source" for ALJs. HallexI-1-0-3.http://www.socialsecurity.gov/OP — Home/hallex/I-01/I-1-0-3.html.
Hallex 11-5-3-2(Nov. 2, 1993), http://www.socialsecurity.gov/OP_Home/hallex/II-05/II-5-3.html. (emphasis supplied).
The ALJ followed the HALLEX and did not explain her use of Mr. Figueroa's age. But, because Mr. Figueroa's age category did change within less than three months after the ALJ's decision, the ALJ should have considered placing him in the next bracket. But without any discussion, there is no way to tell if she did. Accordingly, a remand is appropriate.
But, contrary to Mr. Figueroa's argument, I cannot simply order an award of DIB. Mr. Figueroa mistakenly believes that the ALJ found that he had no transferable work skills. (Plaintiff's Memorandum, at 9). She specifically said that "[t]ransferability of job skills is immaterial to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding of that the claimant is "not disabled," whether or not the claimant has transferable job skills...." (R. 55). So the ALJ did not even reach the issue or make a determination one way or the other. In the next age category, transferable job skills would lead to a finding of "not disabled" even if the individual has a limited education. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.11. Mr. Figueroa has an associate's degree in computer science, and a seventeen-year work history as a computer technician. Consequently, the question of transferable job skills is significant and must be left to the Commissioner on remand.
The plaintiff's motion for an order granting benefits is DENIED, but his motion for a remand is GRANTED. The Commissioner's motion for summary judgment is DENIED.
