The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
Daniel Figueroa seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration denying his application for Disability Insurance Benefits ("DIB") under Title II of the Act. 42 U.S.C. §§ 416, 423. Mr. Figueroa asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.
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:
How we apply the age categories. When we make a finding about your ability to do other work under § 404.1520(f)(1), we will use the age categories in paragraphs (c) through (e) of this section. We will use each of the age categories that applies to you during the period for which we must determine if you are disabled. We will not apply the age categories mechanically in a borderline situation. If you are 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 you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case. (Emphasis supplied).
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, 19 U.S. 264, 399 (1821)(Marshall, C.J.); Illinois v. Lidster, 540 U.S. 419, 424 (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 (2004).*fn1
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, 2012 WL 638056 (8th Cir. 2012):
The Commissioner argues the plain language of 20 C.F.R. § 404.1563(b) imposes no requirement to make specific findings in borderline situations. ... Like the issue of whether a borderline situation exists, the case law on the Commissioner's duties in considering such a situation varies. The Third Circuit appears to have addressed the issue first in Kane v. Heckler, 776 F.2d 1130 (3d Cir.1985), where it remanded because the ALJ failed to address 20 C.F.R. § 404.1563(a). Because this consideration could alter the disability finding, the court stated "judicial approval of these standards is premised on the assurance that SSA will not employ [the grids] to produce arbitrary results in individual cases." Id. at 1134. Although the court did not specify what findings are required, it remanded for the ALJ to consider which category to apply under the circumstances of the case. Id.
Furthering the import of Kane, the Tenth Circuit also remanded in a borderline situation in Daniels v. Apfel, 154 F.3d 1129 (10th Cir.1998). By failing to consider the borderline situation, the Tenth Circuit determined the Commissioner misapplied the law by relying on the grids. Id. at 1135. In sum, the court concluded, "[l]ike any factual issue, a finding regarding the appropriate age category in which to place a claimant must be supported by substantial evidence." Id. at 1136.
While Kane and Daniels support Phillips's position, subsequent case law casts doubt on the issue. First, in Bowie v. Commissioner of Social Security, 539 F.3d 395 (6th Cir.2008), the Sixth Circuit considered a case where the ALJ found a claimant was a "younger individual" and cited § 404.1563,but otherwise did not discuss the claimant's age characterization, even though the claimant was within two months of the next category. Id. at 397. According to the court:
While an ALJ may need to provide, in cases where the record indicates that use of a higher age category is appropriate, some indication that he considered borderline age categorization in order to satisfy a reviewing court that his decision is supported by substantial evidence, § 1563(b) does not impose on ALJs a per se procedural ...