Daniels v. Apfel

• Decision Date: 18 August 1998
• Docket Number: No. 98-5004,98-5004
• Parties: 154 A.L.R. Fed. 793, 58 Soc.Sec.Rep.Ser. 170, 98 CJ C.A.R. 4341 Wilmer DANIELS, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1129

154 F.3d 1129

154 A.L.R. Fed. 793, 58 Soc.Sec.Rep.Ser.

170, 98 CJ C.A.R. 4341

Wilmer DANIELS, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee.

No. 98-5004.

United States Court of Appeals Tenth Circuit.

Aug. 18, 1998.

Paul F. McTighe, Jr., and Gayle L. Troutman, Tulsa, Oklahoma, for Plaintiff-Appellant.

Stephen C. Lewis, United States Attorney, Tina M. Waddell, Chief Counsel, Region VI, Christopher Carillo, Lead Attorney, SSA-Office of the General Counsel, Dallas, Texas, for Defendant-Appellee.

Before TACHA and McKAY, Circuit Judges, and BROWN, ^* Senior District Judge.

BROWN, Senior District Judge.

The primary question on this appeal is whether the Commissioner adequately considered the fact that claimant Wilmer Daniels was only a little more than two months short of being in an age category in which he would be presumptively disabled, when the Commissioner found him not disabled based on the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (the "grids"). Because we conclude that, contrary to agency regulations and rulings, the Commissioner failed to consider the fact that claimant fell within a "borderline" age situation and therefore improperly applied the grids "mechanically," we must remand the case for further consideration. ¹

I.

Mr. Daniels filed a claim for disability insurance benefits in January 1989, alleging disability since April 1988 due to pain in the back, left hip, shoulders, hands and chest and due to depression. The claim was denied administratively (in June 1991), but Mr. Daniels successfully challenged that denial in his first case brought in the district court. Concluding that a post-hearing report submitted by the Commissioner's (then, the Secretary of Health and Human Services) medical expert was "vague and of little objective value," Appellant's App. Vol. II at 208, 204, the district court remanded the case in April 1993 for testimony by the expert at a supplemental hearing. For reasons unclear from the record, the case was not remanded by the Appeals Council to the Administrative Law Judge (ALJ) until July 1994, and the supplemental hearing was not held until December 1995. ² The ALJ issued his decision denying benefits in February 1996, and that decision became the final decision of the Commissioner when the Appeals Council denied review in July 1996.

The ALJ found that Mr. Daniels was severely impaired due to shoulder, back and pulmonary problems, that he did not have a listed impairment, that he could perform the full range of light work, but that he could not perform his past relevant heavy work mounting tires and lubricating cars. The ALJ then turned to the grids, making the following findings:

8. The claimant was under 55 years of age at all times before his insured status expired, defined as approaching advanced age (20 CFR 404.1563).

9. The claimant has completed high school. (20 CFR 404.1564).

10. The claimant is evaluated as if he does not have any acquired work skills which are transferable to the skilled or semiskilled work functions of other work (20 CFR 404.1568).

11. Based on an exertional capacity for light work, and the claimant's age, education, and work experience, section 404.1569 and Rule 202.14, Table No. 2, Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of "not disabled."

12. The claimant's capacity for light work had not been significantly compromised by any additional limitations. Accordingly, using the above cited rule as a framework for decisionmaking, the claimant was not disabled.

13. The claimant was not under a "disability," as defined in the Social Security Act at any time through December 31, 1992, at which time his insured status expired, and therefore at any time though the date of this decision. (20 CFR 404.1520(f)).

Appellant's App. Vol. II at 196. ³

On appeal, Mr. Daniels raises two issues. First, he contends that in violation of 20 C.F.R. § 404.1563, the ALJ mechanically applied the grids' age category and failed to consider the fact that he was only sixty-five days short of his fifty-fifth birthday at the relevant time (i.e., when his insured status expired). Had the ALJ applied the next higher age category, Mr. Daniels would have been presumptively disabled. See App. 2, Rule 202.06. Second, he contends that the ALJ's pain and credibility analysis is not supported by substantial evidence because the ALJ did not link his conclusions to specific evidence, as he contends is required by Kepler v. Chater, 68 F.3d 387 (10th Cir.1995). We review the Commissioner's decision to determine whether his factual findings are supported by substantial evidence and whether he correctly applied the relevant legal standards. See Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.1994).

II.

A.

Because the ALJ found that Mr. Daniels' impairments prevented him from performing his past relevant work, this case reached the fifth step of the sequential process for determining disability, at which point the Commissioner had the burden of showing Mr. Daniels could perform other work that exists in the national economy. See, e.g., Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.1988). One of the ways the Commissioner can meet this burden is through use of the grids. See id. at 751-52. The grids are matrices of the "four factors identified by Congress--physical ability, age, education, and work experience--and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy." Heckler v. Campbell, 461 U.S. 458, 461-62, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (footnotes omitted). The grids thus may provide a shortcut in certain circumstances to determining whether a claimant can perform other work by obviating the need for a vocational expert's testimony. See Trimiar v. Sullivan, 966 F.2d 1326, 1332 (10th Cir.1992).

Through the grids, the Secretary has taken administrative notice of the number of jobs that exist in the national economy at the various functional levels (i.e., sedentary, light, medium, heavy, and very heavy). App. 2, § 200.00(b). "Where the findings of fact made with respect to a particular individual's vocational factors and residual functional capacity coincide with all of the criteria of a particular rule," the existence of jobs in the national economy for that claimant is established, and the rule "directs a conclusion as to whether the individual is or is not disabled." Id. § 200.00(a)-(b).

Channel v. Heckler, 747 F.2d 577, 579 (10th Cir.1984). However, the Commissioner may not apply the grids "conclusively in a given case unless the claimant's characteristics precisely match the criteria of a particular rule." Id.; see also Gossett v. Bowen, 862 F.2d 802, 806 (10th Cir.1988) ("Automatic application of the grids is appropriate only when a claimant's [residual functional capacity], age, work experience, and education precisely match a grid category.").

The Commissioner has established three age categories: younger person (under age fifty), person approaching advanced age (age fifty to fifty-four), and person of advanced age (age fifty-five and over). See 20 C.F.R. § 404.1563. For this case, the relevant categories are approaching advanced age and advanced age. Mr. Daniels was nearly fifty-five years old at the time his insured status ended, ⁴ and thus falls near the cutoff between the two categories. The difference between the two categories is subtle but critical. The regulations provide that "[i]f you are closely approaching advanced age (50-54), we will consider that your age, along with a severe impairment and limited work experience, may seriously affect your ability to adjust to a significant number of jobs in the national economy." § 404.1563(c) (emphasis added). In contrast, "[w]e consider that advanced age (55 or over) is the point where age significantly affects a person's ability to do substantial gainful activity." § 404.1563(d) (emphasis added).

By necessity, the lines drawn between the categories may be arbitrary, but that does not make the categorization impermissible. Cf. Califano v. Aznavorian, 439 U.S. 170, 174, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978) ("Social welfare legislation, by its very nature, involves drawing lines among categories of people, lines that necessarily are sometimes arbitrary. This Court has consistently upheld the constitutionality of such classification in federal welfare legislation where a rational basis existed for Congress' choice."). Moreover, in an attempt to alleviate some of the arbitrariness of the age categories, § 404.1563(a) provides a means of softening the edges of those categories:

We explain in detail how we consider your age as a vocational factor in appendix 2. However, we will not apply these age categories mechanically in a borderline situation.

See Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 532 (6th Cir.1981) (noting that "[i]n line with the Secretary's acknowledgement [of the inherent difficulty in drawing precise age classifications], the regulations specifically provide that age cut-off lines are not to be applied mechanistically").

In the comments accompanying the promulgation of this regulation's predecessor, the Commissioner explained that agency " 'practice over the years, in fact, has been in agreement with the comment that the passage of a few days or months before the attainment of a certain age should not preclude a favorable disability determination.' " Kane v. Heckler, 776 F.2d 1130, 1133 (3d Cir.1985) (quoting 43 Fed.Reg. 55349, 55359 (1978)). As we noted in Lambert v. Chater, 96 F.3d 469, 470 (10th Cir.1996), the Commissioner later repeated this notion when explaining what a borderline situation is: "A 'borderline situation' exists when there would be a shift in results caused by the passage of a few days or months." Social Security...