Lambert v. Chater

• Decision Date: 19 September 1996
• Docket Number: No. 96-6024,96-6024
• Citation: 96 F.3d 469
• Parties: , Unempl.Ins.Rep. (CCH) P 15611B Aljewell LAMBERT, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, * Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 469

96 F.3d 469

51 Soc.Sec.Rep.Ser. 716, Unempl.Ins.Rep. (CCH) P 15611B

Aljewell LAMBERT, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security,^* Defendant-Appellee No. 96-6024.

United States Court of Appeals Tenth Circuit.

Sept. 19, 1996.

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

Stephen C. Lewis, United States Attorney, Joseph B. Liken, Acting Chief Counsel, Region IV, and Chris Carillo, Lead Attorney, Region VI, Office of the General Counsel, Social Security Administration, Dallas, TX, for Defendant-Appellee.

Before BRORBY, BARRETT, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Claimant Aljewell Lambert appeals from an order of the district court affirming the final decision of the Secretary of Health and Human Services denying her application for social security disability benefits. ¹ Claimant contends she became disabled prior to expiration of her insured status on September 30, 1984, due to phlebitis, obesity and venous insufficiency. In a decision that now stands as the final decision of the Secretary, the administrative law judge (ALJ) denied benefits at step five of the five-part sequential process for determining disability. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We review the Secretary's decision to determine whether it is supported by substantial evidence and whether the correct legal standards were applied. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994).

The ALJ determined that at the time claimant's insured status expired, she had the capacity to perform sedentary work, but could not perform her past work, which was performed at a level beyond sedentary. Finding that she was a younger individual, that she had limited education, and that the transferability of skills was immaterial, the ALJ relied on the grids, the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.19, in concluding claimant was not disabled.

On appeal, claimant contends that because she was in the "borderline category" between "younger individual" and "closely approaching advanced age," the ALJ erred by mechanically relying on the grids' age classification rather than considering whether her ability to adapt to new work situations was less than the level established under the grids for persons her age. At the time her insured status expired, claimant was 49 years, 5 months old. "Closely approaching advanced age" begins at age 50.

The regulations provide that the Secretary will not apply the age categories mechanically in a "borderline situation." 20 C.F.R. § 404.1563(a). The Secretary considers a borderline situation to exist "when there would be a shift in results caused by the passage of a few days or months." Social Security Ruling 82-46c, 1982 WL 31427, at * 6 (quotation omitted); see also Andrade v. Secretary of Health & Human Servs., 985 F.2d 1045, 1051 (10th Cir.1993) (Social Security Rulings entitled to deference). When her insured status expired, claimant was seven months short of the next category. We conclude that she did not fall within a borderline situation preventing application of the grids. See Russell v. Bowen, 856 F.2d 81, 84 (9th Cir.1988) (holding that claimant seven months younger than next age category did not fall into borderline situation).

Claimant also urges us to apply the Eleventh Circuit rule prohibiting strict reliance on the grids' age factor when the claimant proffers substantial credible evidence that " 'the claimant's ability to adapt to a new work environment is less than the level established under the grids for persons his age.' " Patterson v. Bowen, 799 F.2d 1455, 1458 (11th Cir.1986) (quoting Reeves v. Heckler, 734 F.2d 519, 526 (11th Cir.1984)). Though...