## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 11-1969

___________ Diana Phillips, *
* Plaintiff – Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Michael J. Astrue, Commissioner, * Social Security Administration, * * Defendant – Appellee. *

___________ Submitted: January 10, 2012 Filed: February 29, 2012

___________ Before WOLLMAN, MURPHY, and BYE, Circuit Judges.

___________ BYE, Circuit Judge. Diana Phillips filed applications for suppl emental security income benefits and disabled widow’s benefits. In conjunction with the me dical-vocational guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, the Administrative Law Judge (ALJ) found Phillips was not disabled. After granting re view, the Appeals C ouncil, and later the district court, affirmed the ALJ’s finding. Th e sole issue in this appeal is whether the Commissioner failed to consider whether Phillips, who was four months shy of her fifty-fifth birthday, should have been cla ssified as being of “advanced age,” rather than “closely approaching advanced age,” which impacts her disability determination. Because we are unable to determine fro m the record whether the Commissionerconsidered whether Phillips should be move d to the higher age category, we remand the case for further proceedings.

I

The ALJ evaluated Phillips’s claims for benefits under the familiar five-step process proscribed by the Social Security regulations. 1 The ALJ found Phillips had not engaged in substantial gainful activ ity since July 13, 2006—the date of her application for benefits. The ALJ further found Phillips suffered from diabetes mellitus and diabetic neuropathy. Although the ALJ dete rmined Phillips had no past relevant work, the ALJ found she had the residual functional cap acity (RFC) for light work. A vocational expert also testified that an individual w ho could perform light work could perform work in the national ec onomy as a sales clerk. While Phillips was a “younger individual” at the time her app lication was filed, the ALJ noted she subsequently changed age categories to “c losely approaching a dvanced age.” Based on Phillips’s age, education, work experi ence, and RFC, the ALJ determined she could perform work as a sales clerk and a security guard. Thus, the ALJ concluded Phillips was not disabled.

The Appeals Council granted review of the ALJ’s decision. The Council included Phillips’s previously-asserted disabl ed widow’s claim in its decision, and it moved the onset date of her claim to January 1, 2006, in order to cover this claim. Adopting the ALJ’s findings, the Council ag reed Phillips could perform the full range of light work. The Council recognized Phillips was 54 years old, or “closely approaching advanced age.” Accordingl y, the Council applied Rule 202.13 of the

1 “The five-part test is whether the clai mant is (1) currently employed and (2) severely impaired; (3) whethe r the impairment is or approximates a listed impairment; (4) whether the claimant can perform past relevant work; and if not, (5) whether the claimant can perform any other kind of work.” King v. Astrue , 564 F.3d 978, 979 n.2 (8th Cir. 2009).
-2-medical-vocational guidelines, which directeda finding of “not disabled.” Phillips sought judicial review of this decision, and the district court affirmed. Phillips now appeals to this court.

II

“We review de novo the District Court’s determination of whether substantial evidence on the record as a whole suppor ts the ALJ’s decision.” Gonzales v. Barnhart , 465 F.3d 890, 894 (8th Cir. 2006). “Ourreview is limited to determining whether the Commissioner’s decision is supported by substantial evidence on the record as a whole,” which “is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion.” Moore v. Astrue , 572 F.3d 520, 522 (8th Cir. 2009) (internal quot ation marks and citation omitted).

The medical-vocational guidelines, or grid s, “are a set of charts listing certain vocational profiles that warrant a finding of disability ornon-disability.” McCoy v. Astrue , 648 F.3d 605, 613 (8th Cir. 2011) (citing 20 C.F.R. Part 404, Subpt. P, App. 2). The grids come into play at step fiveof the analysis, where “the burden shifts to the Commissioner to show that the claima nt has the physical residual capacity to perform a significant number of other jobs in the national economy that are consistent with her impairments and vocational fact ors such as age, education, and work experience.” Holley v. Massanari , 253 F.3d 1088, 1093 (8th Cir. 2001). “If the ALJ’s findings as to RFC, age, education, and work experience fit a ny of the combinations of those criteria contained in the Tables in Appendix 2 to Part 404, then the ALJ must reach the conclusion (either ‘disabled’ or ‘ not disabled’) directed by the relevant Rule or line of the applicable Table.” Reed v. Sullivan , 988 F.2d 812, 816 (8th Cir. 1993) (internal quotation marks and citation omitted).

Under the guidelines, three age cate gories are specified: a younger person (under age 50), a person closely approachi ng advanced age (ages 50-54), and a person

-3-of advanced age (age 55 or older). 20 C.F.R. § 404.1563(c)-(e); see also 20 C.F.R. 416.963(c)-(e). In this case, since the Council determined Phillips was 54 years old at the time of the ALJ’s decision, and thus she was “closely approaching advanced age,” it applied Rule 202.13 of the grids to find Phillips not disabled. Notably, if Phillips had been classified as being of “advanced age,” the grids would direct a finding of disability. See 20 C.F.R. Part 404, Subpart P, Appendix 2, § 202.04.

Accordingly, Phillips’s appeal centers on her age categorization, which is vital to her disability determination. Under the regulations, the age categories are not applied mechanically in a borderline situ ation. 20 C.F.R. § 404.1563(b). Instead, if a claimant is “within a few days to a fe w months of reaching an older age category, and using the older age category would result in a determination or decision that [the claimant is] disabled, [the agency] will cons ider whether to use the older age category after evaluating the overall impact of all th e factors of [the cl aimant’s] case.” Id. To determine whether to apply the claimant’s chronological age or the higher age, the Council adopted a “sliding scale” approach whereby “the claimant must show progressively more additiona l 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.” Application of the Medical-Vocational Guidelines in Borderline Age Situations, So c. Sec. Admin., Office of Hearings and Appeals, Hearings, Appeals, and Litigation Law Manual (HALLEX) II-5-3-2, available athttp://www.socialsecurity.gov/OP_H ome/hallex/II-05/II-5-3-2.html. If the claimant does not show “additional adve rsity(ies) justifying use of the higher age category, the adjudicator will use the clai mant’s chronological age—even when the time period is only a few days [and] [t]he ad judicator need not explain his or her use of the claimant’s chronological age.” Id.

In this asserted borderline situati on, Phillips argues she has at least two additional vocational adversities—re duced vision and no past relevant work—justifying the use of the higher age category, which would result in a finding

-4-of disability under the grids. Although Ph illips concedes the C ouncil was not required to apply the higher age category, she argue s there is nothing in the Council’s decision to indicate the Council considered appl ying the older age cat egory, which it is required to do. Therefore, she argue s the Council’s decision—the Commissioner’s final decision in this case—is not su pported by substantial evidence. SeeHulsey v. Astrue , 622 F.3d 917, 922 (8th Cir. 2010) (“We re view the most recent decision of the Appeals Council, which is the Commissione r’s final decision denying benefits.”).

A. Borderline Situation

We must first examine whether a border line situation exists, given that Phillips was four months shy of her fifty-fifth bi rthday at the time of the ALJ’s decision. Exactly what constitutes a borderline situati on is not defined by statute or regulation, other than the “few days to a fe w months” language mentioned above.

Phillips argues a consensus has develope d establishing a borderline situation exists where the claimant is within six months from the next age category. See Lewis v. Comm’r of Soc. Sec. , 666 F. Supp. 2d 730, 738 (E .D. Mich. 2009) (“Generally, courts hold that a person within six m onths of the next higher age category is considered ‘borderline.’”); Gallagher v. Astrue , No. 08-cv-163-PB, 2009 WL 929923, at *6 (D.N.H. April 3, 2009) (“Although the courts have varied in their interpretation of in what period of time the borderline range falls, the general consensus is that the borderline range falls somewhere around si x months from the older age category.”) (internal quotation marks and citation omitted). The Commissioner asserts no such fixed guidelines exist, and c ourts have concluded a border line situation did not exist where the claimant was four months from the older age category. See Woods v. Chater , No. C 95-1748 SI, 1996 WL 570490, at *5 (N.D. Cal. Sept. 27, 1996) (“[F]our months does not appear to be in the border line under the circumstances of this case.”).

-5-We decline to draw a bright line for purposes of this case. See Holland v. Comm’r of Soc. Sec. , No. 10-1019, 2012 WL 11052, at *1 n.1 (W.D. Pa. Jan. 3, 2012) (“[C]ourts have held that there is no bri ghtline rule for what constitutes a borderline situation.”). Our review of the case law and the circumstances of this case satisfies us that Phillips’s four-month time period constitutes a borderline situation. Importantly, in addition to the close time period between the cate gories, we conclude Phillips established at least one additional vocational adversity justifying the use of the higher age category. Namely, Phillips ha s no past relevant work, which in certain circumstances may be sufficient to establish an additional vocational adversity:

Work experience: Because no past relevant work is more adverse than other work experience categories, th e adjudicator considers whether no past relevant work might be an additional vocational adversity except when using a rule that an indi vidual can meet only by having no past relevant work experience.

EXAMPLE: Medical-vocational rule 203.02 requires no past relevant work, so “no past relevant work” c ould not be considered an additional adversity when using this rule.
Medical-vocational rule 203.01 requi res unskilled or no past relevant work experience. No past relevant work could be considered an additional adversity when using this rule because it is a more adverse vocational factor than unskilled past relevant work.
Social Security Administration, Program Operations Manual System(POMS) § DI 25001.001 (Medical-Vocational Quick Reference Guide), available at https://secure.ssa.gov/poms.nsf/lnx/0425001001#b2. Like the example cited above, Rule 202.04, which would direct a finding of disability in this case if Phillips was classified as being of “advanced age,” requires unskilled or no past relevant work experience, and thus, no past relevant work could be considered an additional adversity because it is a more adverse f actor than unskilled past relevant work.

-6-In sum, we conclude a borderline si tuation existed because Phillips was four months shy of her fifty-fifth birthday, she established at least one additional vocational adversity, and if the higher age category were used, it would result in a determination of disability. Therefore, while the Commissioner was not required to apply the higher age category, he was required to consider applying the next category.

B. Whether the Commissioner Co nsidered the Older Age Category

Next, the parties argue whether the Co mmissioner did, in fact, consider the older age category. The Commissioner argues the plain language of 20 C.F.R. § 404.1563(b) imposes no requirement to make specific findings in borderline situations. The Commissioner also claims the Appeals Council specifically mentioned Phillips’s date of birth and found she was 54 years old, or a “person closely approaching advanced age,” and the ALJ cited 20 C.F.R. § 404.963. The Commissioner contends these findings show the proper consideration was made.

Like the issue of whethe r 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 i ssue first in Kane v. Heckler , 776 F.2d 1130 (3d Cir. 1985), where it remanded because the ALJ fa iled to address 20 C.F.R. § 404.1563(a). Because this consideration could alter the di sability finding, the court stated “judicial approval of these standards is premised on the assurance that SSA will not employ [the grids] to produce arbitrary re sults 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 Circ uit determined the Commissioner misapplied the law by relying on the grids. Id. at 1135. In sum, the court concluded, “[l]ike any

-7-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 consid ered a case where th e 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 categorizati on 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 requirement to address borderline age categorization in every borderline case.

Id. at 399. Notably, while ALJs are not to apply the categories mechanically, the court determined “nothing in this language obligates an ALJ to address a claimant’s borderline age situation in his opinion or e xplain his thought process in arriving at a particular age-category determination,” because the regulations only require the Commissioner to “‘consider’ veering from th e chronological-age default in borderline situations.” Id. The court found further support in the internal regulations, which note, “‘[t]he adjudicator need not explain his or her use of the claimant’s chronological age.’” Id. at 400 (quoting HALLEX II-5-3-2, 2003 WL 25498826).

Despite the lack of a procedural requi rement to make factual findings, Bowie acknowledged ALJs must still “p rovide enough explanation of their overall disability determinations to assure reviewers that their decisions are supported by substantial evidence” and “lack of an explanation ma y in some cases mean that the ALJ’s ultimate decision is not supported by sufficient evidence.” Id. at 400-01. As an

-8-example, the court cited a scenario wher e an individual has additional vocational adversities which might warrant placement in a higher age category; in that situation, Bowie recognized “some discussion of proper age categorization [was merited] in order to meet the substantial-evidence threshold.” Id. at 401. However, because the claimant in Bowie did not have any additional vo cational adversities, the court concluded the ultimate benefits determination was supported by substantial evidence. Id. ; see also Caudill v. Comm’r of Soc. Sec. , 424 F. App’x 510, 516-518 (6th Cir. 2011) (noting although the claimant was about two months from the next category and his case drew similarities to the hypothetical posed in Bowie , “the ALJ provided a sufficient explanation of his disability determination to assure the court that his decision was supported by substantial evidence”). Bowiealso noted the sliding scale approach, whereby additional vocational adversities are considered, was published after Kaneand Daniels , thus distinguishing those cases. 539 F.3d at 402-03.

We note Bowie reached its conclusion over a strong dissent, which recognized: “[t]hat the HALLEX guidelines do not require the ALJ to give an explanation for his discretionary decision not to bump up the ag e of a claimant with a borderline age status does not mean that §§ 404.1563 a nd 404.953 do not require the ALJ to note whether he has even consider ed the claimant’s potential borderline status.” 539 F.3d at 404 (Moore, J., dissenting). The dissentultimately concluded “[w]e cannot review on appeal whether the ALJ [applied the grid mechanically] if the ALJ gives absolutely no indication whether he or she even consider ed the claimant’s borde rline status.” Id. Rather, the dissent acknowledged the ALJ neednot explain his or her decision, even if it would be preferable—“but at a mini mum he has to note that he considered whether to do so in a non-mechanistic manner.” Id.

Finally, the Ninth Circuit took up the issue in Lockwood v. Commissioner of Social Security Administration , 616 F.3d 1068 (9th Cir. 2010), where it concluded the ALJ satisfied the requirement to consider the older age category based on her mention of the claimant’s date of birth, age cate gory of “closely appro aching advanced age,”

-9-and cite to § 404.1563. Id. at 1071-72. The court noted, “[c]learly the ALJ was aware that [the claimant] was just shy of her 55th birthday, at which point she would become a person of advanced age.” Id. at 1072. The court disagreed with the Tenth Circuit to the extent the ALJ was required to do more than “show [] that she considered whether to use the older age category.” Id. at 1072 n.4.

Based on the varying case la w, this case presents a close question. Ultimately, we are more persuaded by the Daniels and Kaneline of reasoning than Bowie and Lockwood , largely for the reasons set forth in the Bowie dissent. Namely, whether the Commissioner must set forth specific findi ngs is a different question than whether there is something in the record to indi cate the Commissioner considered applying the higher age category. But see Lewis , 666 F. Supp. 2d at 736 (“If application of the higher category would result in a finding of ‘disabled,’ the ALJ is required to make a factual finding as to whether the higher cate gory should be used.”). To this end, we agree with the Commissioner that detailed findings in borderline situations are not necessary. However, it is this court’s j ob to review whether substantial evidence exists to support the Commissioner’s decisi on, and we simply cannot complete this review without some showing as to the Commissioner’s consideration of applying the higher age category, which he indis putably is required to do. See Lucas v. Barnhart , 184 F. App’x 204, 208 (3d Cir. 2006) (“Because the record does not contain factual findings relevant to the § 404.1563(b) inquiry into whether [the claimant] was entitled to consideration under Rule 202.06 as a borde rline age case, we conclude that the SSA’s decision that he is ineligib le for benefits under that rule prior to his 55th birthday, July 15, 2003, is unsupported by substantial evidence.”) (emphasis in original); Cox v. Apfel , 166 F.3d 346, at *4 (10th Cir. 1998) (unpublished) (“[B]ecause plaintiff was withinsix months of the next ag e category, that is, advanced age, at the time the ALJ issued his deci sion, he erred by not addressing whether plaintiff was of borderline age before choosing a rule from the grids.”). Indeed, a mere statement by the Commissioner that he considered the borderline situation would likely suffice. SeeVan Der Maas v. Comm’r of Soc. Sec. , 198 F. App’x 521, 527 (6th

-10-Cir. 2006) (“The ALJ . . . determined that ‘it is not appropriate to consider the claimant to be an individual of advanced ag e on her date last insured for benefits.’”).

Although Bowie and Lockwoodheld otherwise, even those cases acknowledge the ALJ must “show [] that she consideredwhether to use the older age category.” Lockwood , 616 F.3d at 1072 n.4; seeBowie , 539 F.3d at 400 (noting ALJs have an obligation to provide sufficient explanation to reviewing courts). From there, Bowie becomes distinguishable because no add itional vocational adversities existed to support the use of the higher age category, whic h played a pivotal role in the decision. 539 F.3d at 401. Here, as di scussed above, Phillips establis hed at least one additional vocational adversity to support the use of the higher age category.

Lockwoodis more squarely on point, becau se the ALJ there found the claimant was 54 years old, was “closely appro aching advanced age,” and cited § 404.1563, which are essentially the same findings ma de here. Nonetheless, to the extent Lockwoodconcluded these findings are su fficient to show the Commissioner considered the borderline situation, we di sagree. Simply noting Phillips’s age and her current age category fails to answer th e precise question at hand—whether her borderline situation warranted moving her to the next category. While the ALJ’s cite to the general regulation comes closer to the issue, the cite was in reference to Phillips changing from a younger individual at the time her claim was filed to a person closely approaching advanced age at the time of th e decision. Again, the finding had nothing to do with the issue at hand—whether ther e was a borderline situation justifying the use of the higher age category. Whether vi ewed in isolation or as a whole, the findings of Phillips’s age, current age category, and intermediate change in categories go more toward a mechanical application of the regulations than a consideration of a borderline situation.

In sum, regardless of the direction to AL Js by the internal regulations as to the lack of fact findings needed, this court still needs to have substantial evidence to

-11-support an ALJ’s decision. See Moore , 572 F.3d at 522 (“Our review is limited to determining whether the Commissioner’s decision is supported by substantial evidence on the record as a whole.”) (int ernal quotation marks and citation omitted); see also 20 C.F.R. § 404.953(a) (“The administrative law judge shall issue a written decision that gives the findings of fact and the reasons for the d ecision.”). “In a case in which the claimant’s age indicates that he or she might well fa ll within a borderline age category, the ALJ’s failure to note thatthe ALJ has consider ed whether a claimant falls within a borderline category and, if so, whether bumping the claimant up is warranted, constitutes a failure to offer findings of fact a nd reasons for the decision.” Bowie , 539 F.3d at 404 (Moore, J., dissenting). Because we are unable to determine from the record if the Commissioner consid ered whether Phillips should be moved to the higher age category, substantial evidence does not support the Commissioner’s decision. See Hitchcock v. Comm’r of Soc. Sec. Admin. , No. 09-551, 2009 WL 5178806, at *10 (W.D. Pa. Dec. 21, 2009) (“[S]ince there is no discussion as to Plaintiff’s borderline age, substantial evid ence does not exist in the record to support that the ALJ did not mechanically apply th e Medical-Vocational Guidelines.”); Schiel v. Comm’r of Soc. Sec. , 267 F. App’x 660, 661 (9th Cir. 2008) (unpublished) (concluding the record did not provide a sufficient basis for review because the transcripts and decision did not show a ny consideration of the borderline age situation). Accordingly, we vacate the di strict court’s judgment and remand the case with instructions to remand the matter to the Commissioner for further proceedings consistent with this opinion.

WOLLMAN, Circuit Judge, dissenting.

The ALJ noted Phillips’s date of bi rth and cited 20 C.F.R. § 404.1563. Likewise, the Appeals Council specifically me ntioned Phillips’s date of birth, finding that she was 54 years old, which perforce rendered her a person closely approaching advanced age at the time of th e ALJ’s decision. These references satisfy me that both

-12-the ALJ and the Appeals Council consideredthe use of the older age category in determining that Phillips was not disabled.

Although the majority opinion attempts to minimize the necessity of detailed findings in every “closely approaching a dvanced age” case (“a me re statement by the Commissioner that he considered the borde rline situation would likely suffice”) we can be sure that unsuccessful claimants will not agree. Indeed, th e thrust, if not the specific holding, of the majority opinion is that specific findings will be required in the vast majority of these cases . In the abstract, this may be a desirable result. After all, the Social Security Administration ha s apparently been able to live with the requirements imposed by the Third and the Tenth Circuits in Kaneand Daniels

. Whether such findings are required by the rele vant statutes and regulations is another matter, however, and, on the basis of the r ecord before us, I w ould not require a more explicit explanation of the ALJ’s and th e Appeals Council’s decision not to move Phillips into the higher category. Accord ingly, I respectfully dissent from the majority’s holding to the contrary.

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