* Honorable Wesley E. Brown, Senior District Judge, United States District Court

for the District of Kansas, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 18 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILMER DANIELS,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No. 98-5004

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 96-CV-784-M)

Submitted on the briefs:

Paul F. McTighe, Jr., and Gayle L. Troutman, Tulsa, Oklahoma, for PlaintiffAppellant.

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.
1 After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument. 

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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
2 The medical expert was not available to testify, so the parties agreed not to

consider the expert’s earlier written report. Mr. Daniels and a vocational expert testified

at the second hearing.

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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).
3 Although the ALJ stated that he used the grids as a “framework,” it is clear he

relied solely on the grids in finding Mr. Daniels not disabled.

-4-

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
-5-

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 (1983) (footnotes omitted). The grids thus may provide a

shortcut in certain circumstances to determining whether a claimant can perform
-6-

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. 
4 Because disability must be shown by expiration of insured status, see Henrie v.

United States Dep’t of Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993), the

last day of Mr. Daniels’ insured status (December 31, 1992) is the appropriate date for

determining applicability of the grids.

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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 (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
-8-

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 Ruling 82-46c, 1982 WL 31427, at *6 (quotation 

omitted); see also id. n.4 (“In the case of a borderline situation, the Secretary is

directed to apply the guidelines flexibly to avoid dramatic shifts in results.”).
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As it applies to this case, § 404.1563(a) raises several questions. First,

what is a borderline situation? Second, who has the burden of showing that a

borderline situation exists or, stated differently, that the age categories should not

be applied mechanically? And third, what does “not applying the age categories

mechanically” mean? 

B.

Although the Commissioner has expressly refused to further define what a

borderline situation is, see Social Security Ruling 83-10, 1983 WL 31251, at *8

(“No fixed guidelines as to when a borderline situation exists are provided since

such guidelines would themselves reflect a mechanical approach.”), we do have

his general guidance that it is a factor solely of the claimant’s age and exists

when the claimant is within “a few days or months” of the next category. 

Whatever the full extent of that range may be, we conclude that claimant here,

who was only sixty-five days short of the advanced age category, does fall within

the borderline situation. Compare, e.g. , Kane , 776 F.2d at 1132-33 (48 days

before next age category within borderline situation); Ford v. Heckler , 572 F.

Supp. 992, 994 (E.D.N.C. 1983) (two months within borderline); Hilliard v.

Schweiker , 563 F. Supp. 99, 101-02 (D. Mont. 1983) (less than three months

within borderline); Hill v. Sullivan , 769 F. Supp. 467, 471 (W.D.N.Y. 1991)

(three months, two days within borderline), with Underwood v. Bowen , 828 F.2d
5 The Commissioner also makes two other arguments we find unpersuasive. First,

the Commissioner contends that the grids in general, and the age categories in particular,

are constitutional and not arbitrary and capricious, and that “[t]o successfully challenge

the Grids, appellant must demonstrate that no reasonable basis exists for the distinctions

drawn because unless the limitation imposed by Congress is wholly irrational, it is

constitutional.” Appellee’s Br. at 7 (quotation omitted). Mr. Daniels, however, is not

challenging the grids or age categories themselves; he is simply asking that the

Commissioner apply one of his own regulations, about which there is no question of

constitutionality or arbitrariness. 

The Commissioner also argues that what constitutes a borderline situation is

subject to his discretion. See id. at 6-7. To the extent that the Commissioner means that

he is authorized to define what a borderline situation is, that may be true, and he has

(continued...)

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1081, 1082 (5th Cir. 1987) (ten months not within borderline); Lambert , 96 F.3d

at 470 (seven months not within borderline). But see Crady v. Secretary of Health

& Human Servs. , 835 F.2d 617, 618-19, 622 (6th Cir. 1987) (age within

approximately one month of next category not necessarily within borderline).

C.

Mr. Daniels’ primary argument on appeal is that the Commissioner failed to

apply § 404.1563(a). Nonetheless, in his response brief, the Commissioner never

addresses whether claimant’s age places him in the borderline situation, nor,

surprisingly, does he even cite § 404.1563(a). Instead, relying primarily on

Reeves v. Heckler , 734 F.2d 519 (11th Cir. 1984), the Commissioner argues that

Mr. Daniels had the burden of showing he should be classified in the higher age

bracket, and that he failed to meet this burden. 5 Under Reeves and its progeny,
5

(...continued)

defined it solely to be a factor of age. To the extent that he means that the ALJ in this

case exercised his discretion in determining that Mr. Daniels did not fall within the

borderline, we disagree. The ALJ never addressed the issue of whether Mr. Daniels fell

within the borderline or whether he should be considered in the next age bracket. 

Determining whether a claimant falls within a borderline situation appears to be a factual

rather than discretionary matter, and the ALJ erred by not making the necessary factual

finding. See, e.g., Winfrey v. Chater, 92 F.3d 1017, 1026 (10th Cir. 1996). Even were

this considered a discretionary matter, the ALJ would have abused that discretion by

failing to exercise it. Cf. Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997), cert.

denied, 118 S. Ct. 702 (1998).

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regardless of whether a claimant is in a borderline situation, he may show that his

chronological age category should not apply:

In discharging [the step-five] burden the Secretary may use the age

factor as applied in the grids as evidence of the claimant’s ability to

adapt to a new work environment, but this age factor shall not be 

conclusive. If the claimant then proffers substantial credible

evidence that his ability to adapt is less than the level established

under the grids for persons his age, the Secretary cannot rely on the

age factor of the grids and must instead establish the claimant's

ability to adapt to a new work environment by independent evidence. 

Cf. Texas Department of Community Affairs v. Burdine , 450 U.S.

248 . . . (1981) (establishing a tripartite scheme of burden of

production in Title VII cases). Applied specifically to this case, this

burden of production scheme allows the Secretary to rely in the first

instance on the age grids, but, if Reeves introduces evidence that his

ability to adapt is more limited than that presumed by the grids for 37

year-olds, the Secretary must prove Reeves’s ability to adapt by other

evidence.

Reeves , 734 F.2d at 525-26. 
6 We expressed concern about the validity of this rule, outside the borderline

situation, in Lambert, 96 F.3d at 470.

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Whatever the merits of this position outside the borderline area, 6

 we find it

inapplicable to borderline situations because it ignores § 404.1563(a). Applied to

borderline situations, this position essentially places the burden on a claimant to

prove why the grids should not be applied mechanically. Nothing in

§ 404.1563(a) supports this position. The regulation provides that once it is

determined that a claimant is in a borderline situation, which, as noted earlier, the

Commissioner has defined solely in terms of age relative to the next category,

“We”-- meaning the Social Security Administration--“ will not apply these age

categories mechanically. ” The Commissioner’s argument rewrites the regulation

to say essentially that “in borderline situations, we will allow you--the claimant--

to prove why the grids should not be applied mechanically.” The plain language

of the regulation does not allow this interpretation.

Moreover, placing the burden on the Commissioner of determining in the

first instance what age category to apply is consistent with the Commissioner’s

existing burdens. Application of § 404.1563(a) is a step-five issue, and the

burden generally is on the Commissioner at step five. See Williams , 844 F.2d at

751. Additionally, as the Third Circuit has emphasized in this context, it is the

Commissioner’s burden to show that a claimant’s characteristics precisely match
7 Campbell indicated that one circuit, the Eleventh in Broz v. Schweiker, 677 F.2d

(continued...)

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those of the grids. See Kane , 776 F.2d at 1132-34. Kane noted that in upholding

a challenge to the grids on the basis that they were arbitrary and capricious and

inconsistent with the Social Security Act’s assurance of individual consideration,

the Supreme Court “relied on the guarantee that ‘[i]f an individual’s capabilities

are not described accurately by a rule, the regulations make clear that the

individual’s particular limitations must be considered.’” Id. at 1133-34 (quoting

Campbell , 461 U.S. at 462 n.5). The court also recognized Campbell ’s reference

to § 404.1563(a) and its statement that “‘[t]hus, the regulations provide that the

rules will be applied only when they describe a claimant’s abilities and limitations

accurately.’” Id. at 1134 (quoting Campbell , 461 U.S. at 462 n.5). Kane then

concluded that 

[i]n sum, courts recognize that the grids provide useful

standards and allow for consistent, less complex decision-making. 

But judicial approval of these standards is premised on the assurance

that [the Social Security Administration] will not employ them to

produce arbitrary results in individual cases. Where a procrustean

application of the grids results in a case that, but for the passage of a

few days, would be decided differently, such an application would

appear to be inappropriate. Section 404.1563(a) therefore serves an

important purpose in the regulatory scheme, and ALJs should adhere

to its clear language.

776 F.2d at 1134. Whether the existence of § 404.1563(a) was critical to judicial

approval of the grids is of no moment for present purposes. 7 What is critical is
7

(...continued)

1351 (11th Cir.1982), had found the age categories arbitrary, but the Court noted that it

did not have to address that issue. 461 U.S. at 464 n.8. The Court subsequently vacated

Broz in light of Campbell, see Heckler v. Broz, 461 U.S. 952 (1983), and the Eleventh

Circuit then reaffirmed it, 711 F.2d 957, and modified it, 721 F.2d 1297 (11th Cir.1983). 

Reeves was the Eleventh Circuit’s first decision dealing with the age factor in light of

Broz. See Reeves, 734 F.2d at 525-26.

8 Alternatively, the district court held that even if Mr. Daniels were considered to be

in the “advanced age” category, he would be considered not disabled under Rule 202.07

of the grids. That rule, however, requires a finding that the claimant possess transferable

skills, and the ALJ did not find that Mr. Daniels had such skills. Because a reviewing

court may not reweigh the evidence, see Hinkel v. Apfel, 132 F.3d 1349, 1351 (10th Cir.

1997), the district court’s reliance on Rule 202.07 was inappropriate.

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the fact that in a borderline situation, such as we have here, § 404.1563(a) plainly

precludes mechanical application of the age categories, that is, simply considering

the chronological age of the claimant at the relevant time. Failing to consider the

effect of a borderline situation in turn precludes application of the grids as a basis

for finding no disability, because the Commissioner will not have shown that “the

claimant’s characteristics precisely match the criteria of a particular rule.” 

Channel , 747 F.2d at 579. The ALJ here failed to do that, and therefore should

not have relied on the grids for his decision. As a result, we conclude that the

Commissioner misapplied the law and that the case must be remanded for further

consideration of this issue. 8

D.
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That leads to the final question--what does not applying the age categories

mechanically mean? The Commissioner has provided virtually no guidance on
9

Ironically, the only guidance of which we are aware that the Commissioner has

provided related to this matter is his issuance of an Acquiescence Ruling critical of one of

Reeves’ progeny, Patterson v. Bowen, 799 F.2d 1455 (11th Cir. 1986). Patterson is not a

§ 404.1563(a) or borderline case, but it does discuss Reeves’ rule prohibiting mechanical

application of the age categories. See 799 F.2d at 1458-59. As the Commissioner

described the holding in this case, “[t]he Patterson court concluded that evidence of

physical or mental impairments is relevant to the question of a claimant’s ability to adapt

to a new work environment and must be used to help establish that a person’s ability to

adapt is less than the level established under the medical-vocational guidelines for

claimants of that age.” Acquiescence Ruling 88-1 (11), issued January 29, 1988, 1988

WL 236018, at *3. The ruling explained how this differed from agency policy:

The Social Security Administration (SSA) considers medical and

other evidence relating to a claimant’s ability to perform work-related

functions despite his or her physical/mental impairments in its assessment

of residual functional capacity. Therefore, SSA does not use evidence of a

claimant’s physical or mental impairments a second time for the purpose of

deciding that the claimant’s ability to adapt to new work in terms of age

alone is greater or less than that of others of that age. SSA believes that to

do so is to give double weight to the same evidence in deciding whether or

not a claimant is disabled.

Id. Although the ruling states that “SSA intends to clarify the regulation at issue in this

case [apparently referring to § 404.1563] through the rulemaking process,” id., we are

unaware of any subsequent clarification.

Patterson addressed the agency’s position subsequently reflected in Acquiescence

Ruling 88-1, and concluded that “[i]f the Secretary's position on appeal (that evidence of

physical and mental impairments is irrelevant to the ability to adapt issue) were accepted,

it is difficult to understand how a claimant could establish that his ability to adapt to a

new job is less than that presumed under the grids for a person his age.” 799 F.2d at 1459

n.5. Patterson makes a good point--what evidence is relevant to the ability-to-adapt

question? That question is not before us, and we leave it for another day.

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this point, 9

 but again, we think Kane generally answered this question

appropriately:
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According to the regulatory description of the age factor, the

important difference between those of advanced age and those

closely approaching advanced age is that the age of persons in the

former category “significantly affects a person’s ability to do

substantial gainful activity,” while the age of those in the latter

category merely “seriously affect[s their] ability to adjust to a

significant number of jobs in the national economy.”

[20 C.F.R.] § 404.1563(c), (d). The ALJ must consider which of

these rules better described Kane’s abilities on December 31, 1979,

given the claimant’s actual age and circumstances on that date.

776 F.2d at 1134. However, we do not agree with Kane that the fact that a

claimant falls within a borderline situation necessarily precludes reliance on the

grids. See id. (after determining which category claimant should be in, “ALJ may

then use the grids primarily as a guide in making the disability determination.”);

see also Gonzalez v. Secretary of Health & Human Servs. , 784 F.2d 1417, 1420

(9th Cir. 1986) (holding that vocational expert rather than grids should be used

“where the claimant’s [age] circumstances approach the upper limits of the grid

guidelines”). We see no reason why, if the ALJ determines that based on

whatever evidence is available, the claimant should be classified in a particular

age category, the ALJ cannot then use that category in applying the grids. 

To sum up, a borderline situation exists under § 404.1563(a) when a

claimant’s age is within a few days or months of the next higher age category. 

When a claimant falls within a borderline, § 404.1563(a) prohibits the

Commissioner from mechanically applying the age categories in relying on the

grids to determine whether a claimant is disabled. The Commissioner must
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determine based on whatever evidence is available which of the categories on

either side of the borderline best describes the claimant, and the Commissioner

may apply that category in using the grids. Like any factual issue, a finding

regarding the appropriate age category in which to place a claimant must be

supported by substantial evidence. 

E.

We turn briefly to Mr. Daniels’ second argument on appeal. 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. See

Kepler , 68 F.3d at 390-91. We agree with the district court that while the ALJ’s

assessment of pain and credibility could be better and more thorough, the ALJ did

not commit reversible error.

III. 

Because Mr. Daniels’ age placed him within a borderline situation, but the

Commissioner nonetheless applied the age categories mechanically in violation of

§ 404.1563(a), the Commissioner misapplied the law in finding Mr. Daniels not

disabled. Therefore, we must VACATE the judgment of the district court, and

REMAND the case with instructions to remand the matter to the Commissioner

for further proceedings consistent with this opinion.