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File Name: 08a0311p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JOSEPHINE BOWIE,

Plaintiff-Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

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No. 07-2125

Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

No. 06-14448—Thomas L. Ludington, District Judge.

Submitted: June 2, 2008

Decided and Filed: August 22, 2008 

Before: MERRITT, MOORE, and ROGERS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Marc W. Mulder, CLAYTON, MULDER & HORAN, Waterford, Michigan, for

Appellant. Janet Gumm, SOCIAL SECURITY ADMINISTRATION, OFFICE OF THE GENERAL

COUNSEL, Chicago, Illinois, for Appellee.

ROGERS, J., delivered the opinion of the court, in which MERRITT, J., joined. MOORE,

J. (pp. 9-10), delivered a separate dissenting opinion.

_________________

OPINION _________________

ROGERS, Circuit Judge. This Social Security disability appeal presents a single procedural

issue regarding whether the agency adequately explained its decision. At least on the particular facts

of this case, it was procedurally acceptable for the ALJ not to address in his opinion that Bowie was

“borderline” between age groups under 20 C.F.R. § 404.1563(b). The district court therefore

properly upheld the Commissioner’s denial of benefits.

Suffering from hypertension, aortic stenosis, and recurrent depression, appellant Josephine

Bowie filed an application for social security disability benefits on March 29, 2000. Her claim was

denied initially and on reconsideration, after which she requested and received a hearing before an

ALJ. Bowie was apprised of her right to representation, but proceeded without an attorney. A

vocational expert appeared and testified at the hearing. At the time of her administrative hearing,

Bowie was 49 years old and less than two months away from her 50th birthday. 

1
No. 07-2125 Bowie v. Comm’r of Soc. Sec. Page 2

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The ALJ indicated that Bowie’s allegations regarding her limitations were “not totally credible.” 

The ALJ filed an opinion on July 13, 2005, in which he concluded that Bowie was not

disabled. Proceeding through the five steps of the disability-benefits analysis prescribed in the

Social Security Administration’s disability regulations, see 20 C.F.R. § 404.1520(b)-(g), the ALJ

determined that Bowie had not engaged in any substantial gainful activity since her alleged disability

onset date (Step 1); that Bowie’s impairments are “severe” (Step 2), but do not qualify under the

Commission’s Listings of Impairments (Step 3); that Bowie is capable of performing unskilled

sedentary exertional work; that Bowie is unable to perform any of her past relevant work as an

assembler in the automobile industry (Step 4); and that, considering Bowie’s residual functional

capacity and vocational factors, Bowie is capable of making an adjustment to other work (Step 5).

With respect to Step Five, the ALJ concluded that Bowie’s past relevant work is unskilled; that she

has two years of college education; and that, giving Bowie the benefit of the doubt and according

“full credence” to her testimony,1 there are thousands of jobs in the regional economy requiring only

unskilled sedentary work that Bowie could perform. The latter conclusion was based largely on the

testimony of the vocational expert, who testified that there were a significant number of unskilled

sedentary jobs in the regional economy within Bowie’s established residual functional capacity and

that Bowie’s exertional and nonexertional limitations would not, in combination, preclude the

performance of any substantial gainful activity.

Importantly for purposes of this appeal, the ALJ placed Bowie in the “younger individual”

age category: “Claimant is a ‘younger individual’ (20 CFR § 404.1563).” The “younger person”

category spans ages 45 to 49, and is followed by the “closely approaching advanced age” category,

which spans ages 50 to 54. 20 C.F.R. § 404.1563(c)-(d). Subsection (b) of the regulation governing

age categories provides that there is to be some flexibility between the age categories in “borderline”

situations:

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.

20 C.F.R. § 404.1563(b) (emphasis added). Other than concluding that Bowie is a “younger

individual” and citing 20 C.F.R. § 404.1563, the ALJ did not discuss Bowie’s age categorization in

his opinion. He did not explicitly address the possibility that Bowie, less than two months shy of

her 50th birthday, presented a “borderline” situation, and he did not discuss the possibility of

moving Bowie to the “closely approaching advanced age” category. 

Bowie subsequently filed a request for review with the Appeals Council, which initially

granted her request and remanded the case because the administrative record was missing. Upon

locating the record, the order of remand was vacated and Bowie’s request for review was denied on

August 7, 2007. Bowie then challenged the Commissioner’s decision in district court.

Characterizing Bowie’s argument as that the “ALJ improperly categorized plaintiff as a

‘younger individual’ when she should have properly been considered ‘closely approaching advanced

age,’” the magistrate judge concluded that the ALJ’s decision was supported by substantial evidence

and that Bowie was properly categorized as a “younger individual.” The magistrate judge
No. 07-2125 Bowie v. Comm’r of Soc. Sec. Page 3

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The HALLEX provides fishing and forestry as examples of isolated industries.

3

. . . At the time she filed for benefits, [Bowie] reported that she prepared meals for herself and her

children, washed dishes, did the laundry, shopped regularly, visited friends, attended church and

enjoyed working on puzzles. Although the medical evidence does establish impairments to [Bowie’s]

cardiac function, repeated cardiac exercise stress tests were negative for exercise-induced ischemia.

Nor were any of the exertional limitations listed by Dr. Mathew in his report . . . inconsistent with the

residual functional capacity determined by the ALJ.

As to [Bowie’s] alleged mental impairments, Dr. Han reported that Plaintiff undertook many

activities, that her insight and self-esteem were “fairly good,” that her mental activity was relevant,

her speech normal, organized and focused, and that she evidence no hallucinations, delusions or

suicidal thoughts. Furthermore, subsequent medical records evidence that [Bowie’s] stress level was

reduced and that she showed “good progress.”

Magistrate Judge’s Report and Recommendation at 11 (internal citations omitted).

emphasized that the record contains no evidence of the age-related “additional vocational

adversities” described in the Hearings, Appeals and Litigation Law Manual of the Social Security

Administration (HALLEX). See Application of the Medical-Vocational Guidelines in Borderline

Age Situations, Soc. Sec. Admin., Office of Hearings and Appeals, Hearings, Appeals and Litigation

Law Manual (HALLEX) II-5-3-2. Through the HALLEX, the Associate Commissioner of Hearings

and Appeals provides “guiding principles, procedural guidance and information” to adjudicators and

staff of the Office of Hearings and Appeals. Id. I-1-0-1. The HALLEX provisions relied upon by

the magistrate judge became effective on November 2, 1993. Id. II-5-3-2.

According to the HALLEX, a claimant presents a borderline age situation when: (1) the

claimant’s age is within a few days or months of a higher age category; and (2) use of the higher age

category would result in a finding of disability. Id. II-5-3-2. If a claimant presents a borderline

situation, the ALJ is directed to decide whether it is more appropriate to use the claimant’s

chronological age or the higher age. To do this, the ALJ takes a “sliding scale” approach:

Under this approach, the claimant must show progressively more additional

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.

Examples of “additional vocational adversities” are the presence of an additional impairment that

infringes on the claimant’s remaining occupational base; having only a marginal ability to

communicate in English; or a history of work experience in an unskilled job in one isolated industry

or work setting.2

 “Absent a showing of additional adversity(ies) . . . the adjudicator will use the

claimant’s chronological age.” Based on his conclusion that the record was devoid of evidence that

Bowie had any such “additional adversities,”3

 the magistrate judge recommended that the district

court grant summary judgment to the Commissioner. 

Bowie objected to the magistrate judge’s report and recommendation. She clarified that her

claim is that, because she presented a borderline age situation, the ALJ was required in his decision

to address 20 C.F.R. § 404.1563(b), the regulation providing for flexibility in borderline age

situations. In support, Bowie cited Wilson v. Commissioner, 378 F.3d 541 (6th Cir. 2004), for the

proposition that “the Commissioner should not have the ‘ability to violate regulations with impunity

and render the protections promised therein illusory.’” She requested that the district court remand

her case to the ALJ “to make a proper determination regarding the age category provisions of 20

CFR 404.1563(b).” 
No. 07-2125 Bowie v. Comm’r of Soc. Sec. Page 4

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The parties do not dispute that Bowie presented a borderline age situation—i.e., that she was within a few

days to a few months of reaching an older age category, and that using the older category would result in a finding of

disability. See 20 C.F.R. § 404.1563(b).

The district judge adopted the magistrate’s report and recommendation, overruled Bowie’s

objections, and granted summary judgment to the Commissioner. The district judge interpreted

Bowie as arguing that “the application of the older age category was both mandatory and would

result in a finding of disability,” and concluded that Bowie “misinterprets the law,” explaining that

the “ALJ simply has discretion to apply the older age category if he believes it is warranted.” The

judge also rejected Bowie’s contention that the ALJ did not apply 20 C.F.R. § 404.1563(b),

explaining that “[t]he ALJ made a specific finding under section 1563 that the plaintiff was a

‘younger individual’” and that, having listed both Bowie’s age and birth date, the ALJ was plainly

informed of the fact that she was approaching 50 years of age. The district judge concluded that

“[u]ltimately, the plaintiff cannot demonstrate that the ALJ disregarded the applicable regulation.

At best, she has voiced her dissatisfaction with the effect of that application.” Moreover, the judge

distinguished Wilson, finding the case inapposite: “At issue here is the discretionary application of

certain rules governing vocational factors, not the articulation of a reason to depart from a wellestablished rule for crediting medical evidence.” 

On appeal, Bowie argues that because she was borderline between age groups,4

 the ALJ was

required to apply 20 C.F.R. § 404.1563(b) in determining her age category. On Bowie’s reading of

the regulation, this means that the ALJ is required to acknowledge Bowie’s borderline status

explicitly and to make an explicit determination regarding which age group is most appropriate, and

that an ALJ’s failure to conduct an explicit borderline age analysis constitutes a mechanical

application of the age categories in violation of § 1563(b). Accordingly, Bowie argues that the ALJ

committed procedural error by not addressing her borderline status or otherwise explicitly indicating

that he considered it.

The ALJ’s decision to deny Bowie benefits is, however, supported by substantial evidence

and not the product of procedural error. 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 requirement to address

borderline age categorization in every borderline case. 

In regulations addressed to the claimant in the second person, the Commission provides that

if a claimant is unable to perform her past relevant work due to her impairment, the Commission will

consider the claimant’s residual functional capacity combined with her vocational factors—which

include age, education, and work experience—to determine if the claimant can make an adjustment

to other work. See 20 C.F.R. § 404.1520(g)(1) (Step 5). In considering age as a vocational factor,

the regulations provide that “‘[a]ge’ means your chronological age” and that the Commission “will

use the age categories in paragraphs (c) through (e) of” 20 C.F.R. § 404.1563. Id. § 404.1563(a)-(b).

Describing how the Commission will apply the age categories, the regulation informs the claimant

that the Commission “will not apply the age categories mechanically in a borderline situation,” and

explains that in such a situation the Commission will “consider whether to use the older age category

after evaluating the overall impact of all the factors of your case.” 20 C.F.R. § 404.1563(b). 

Although ALJs are obligated by this text not to apply the age categories mechanically and

to consider whether use of an older age category would be appropriate in a borderline case, nothing

in this language obligates an ALJ to address a claimant’s borderline age situation in his opinion or

explain his thought process in arriving at a particular age-category determination. Rather, the

regulation merely promises claimants that the Commission will “consider” veering from the

chronological-age default in borderline situations. 
No. 07-2125 Bowie v. Comm’r of Soc. Sec. Page 5

5

It is worth noting that it is not beyond dispute that the ALJ failed to provide a sufficient indication that he

considered Bowie’s borderline age situation. The ALJ cited 20 C.F.R. § 404.1563 in categorizing Bowie as a “younger

individual,” after listing Bowie’s birth date and age. The ALJ’s citation of § 404.1563 indicates, at the very least, that

he was aware of the existence of the regulation governing age categorization. And, as the district court noted, it is fair

to assume from the ALJ’s notation of Bowie’s age and birth date that he realized she was quickly approaching age 50.

While not binding on this court, the procedural guidance to the staff and adjudicators of the

Office of Hearings and Appeals set forth in the HALLEX bolsters this interpretation. In Section II5-3-2, the Associate Commissioner of Hearings and Appeals provided an Appeals Council

interpretation of 20 C.F.R. § 404.1563 entitled “Application of the Medical-Vocational Guidelines

in Borderline Age Situations,” which interpretation directs ALJs to consider whether the claimant

has presented “additional vocational adversities” in determining whether to veer from a claimant’s

chronological age in a borderline situation. HALLEX II-5-3-2. Appeals Council interpretations are

“designed to surface and resolve issues arising from gaps in policy or unclear statements of policy,

promote greater consistency and uniformity in applying policy throughout the adjudicatory process,

and establish precedents at the hearings and appeals levels of adjudication.” Id. I-1-0-2. With

respect to borderline age situations, the Council advised:

Absent a showing of additional adversity(ies) justifying use of the higher age

category, the adjudicator will use the claimant’s chronological age—even when the

time period is only a few days. The adjudicator need not explain his or her use of

the claimant’s chronological age.

Id. (emphasis added). Moreover, the Appeals Council appears to anticipate that ALJs will not

always address the issue of age categorization in cases involving borderline age situations, and

explains that in such situations, the Council will typically deny review unless there is a basis in the

record for using a higher age category:

The Appeals Council will ordinarily deny review, assuming there is no other basis

for granting review, when a borderline age situation exists, the ALJ's decision does

not address the issue, and the Appeals Council does not find sufficient basis in the

record for using the higher age category.

Id. (emphasis added). Thus, not only is there no procedural requirement apparent on the face of 20

C.F.R. § 404.1563(b) to address age categorization explicitly in borderline situations, the Appeals

Council also does not presume such a requirement.

This court’s decision in Wilson v. Commissioner, 378 F.3d 541 (6th Cir. 2004), is not to the

contrary. Although Bowie is correct that Wilson stands for the proposition that remand is

appropriate when an agency fails to follow its own procedural requirements, Wilson is

distinguishable from the instant case in that the ALJ in Wilson demonstrably violated a clear

elaboration requirement imposed explicitly by the regulations. Section 404.1527(d)(2) promises

claimants that the Commission will “always give good reasons in our notice of determination or

decision” for not giving weight to a treating physician’s opinion in the context of a disability

determination. 20 C.F.R. § 404.1527(d)(2). Despite this “good reasons” requirement, the ALJ in

Wilson rejected the opinion of the claimant’s treating physician without providing any explanation.

Wilson, 378 F.3d at 545. This action violated the ALJ’s clear explanatory obligation to “give good

reasons” for rejecting a treating physician’s opinion. By contrast, the regulations governing

borderline age situations do not impose a procedural explanatory requirement. Section 1563(b) does

not, for example, promise claimants that the Commission will “give good reasons” for using

chronological age in a borderline age situation. Rather, § 1563(b) merely provides that the

Commission will “consider” whether use of an older age category would be appropriate and that it

“will not apply the age categories mechanically in a borderline situation.”5
No. 07-2125 Bowie v. Comm’r of Soc. Sec. Page 6

That § 1563(b) does not impose a per se procedural requirement to address borderline age

categorization explicitly in every borderline case does not relieve ALJs of their obligation to provide

enough explanation of their overall disability determinations to assure reviewers that their decisions

are supported by substantial evidence. See 42 U.S.C. § 405(g). Although an ALJ does not have a

procedural obligation to address a claimant’s borderline age situation in his opinion or explain his

reasons for arriving at a particular age categorization, lack of an explanation may in some cases

mean that the ALJ’s ultimate decision is not supported by sufficient evidence. For example,

substantial evidence might be lacking where an ALJ, with no explanation, places a claimant in the

“younger individual” age category who is 49 years and 11 months, unskilled, sedentary, barely

literate, and whose only previous work experience was in the fishing industry. See Rule 201.18,

App’x 2 to Subpart P of 20 C.F.R. § 404; HALLEX II-5-3-2. In that situation, the claimant’s

additional vocational adversities would be significant and would merit some discussion of proper

age categorization in order to meet the substantial-evidence threshold. 

Such is not the case with respect to Ms. Bowie. As the magistrate judge explained in detail,

there is simply no evidence in the record that Bowie suffered from any “additional vocational

adversities” that might justify placing her in the higher age category. Moreover, the ALJ indicated

that he did not find Bowie’s allegations regarding her limitations entirely credible to begin with and

that he gave her testimony the benefit of the doubt. Given these circumstances and the lack of any

other questionable findings by the ALJ, the ultimate benefits determination is supported by

substantial evidence. 

Our reasoning is supported by the well-reasoned, albeit unpublished, decision in Van Der

Maas v. Comm’r of Soc. Sec., 198 F. App’x 521, 528 (6th Cir. 2006):

Van der Maas was within a couple of months of reaching an older age category.

Although the ALJ acknowledged that fact, the ALJ did not move her to the higher

category, presumably because the ALJ did not find that Van der Maas had

demonstrated the “additional vocational adversities” required to do so. See

HALLEX II-5-3-2. The ALJ’s failure to explicitly mention the sliding scale,

especially considering that she articulated the two factors relevant to the borderline

age analysis, does not undermine the ALJ’s determination to consider Van der

Maas’s application according to her chronological age. A review of the ALJ’s

decision makes clear that the ALJ was unpersuaded by Van der Maas’s allegations

regarding the extent of her impairments and that the ALJ believed that many of Van

der Maas’s health problems arose after her insured status had expired. Substantial

evidence in the record supports the ALJ’s conclusion.

Id. It is true that in Van Der Maas the ALJ had given a somewhat more explicit indication that she

was aware of the claimant’s borderline age situation: the ALJ had “articulated the two factors

relevant to the borderline age analysis” and had stated that “it is not appropriate to consider the

Claimant to be an individual of advanced age on her date last insured for benefits.” See id. at 527-

28. Van Der Maas nonetheless supports our reasoning in that we did not find problematic the ALJ’s

failure to explain her age-categorization reasoning because the ALJ’s reasons were apparent from

the record.

We recognize that two cases from other circuits could be construed as being in tension with

our conclusion. In Daniels v. Apfel, 154 F.3d 1129 (10th Cir. 1998), for example, the Tenth Circuit

remanded the claimant’s case for failure to “consider” the effect of a borderline situation where the

ALJ did not explicitly address which age category best suited the borderline claimant. Id. at 1133-

35. The court noted that “[d]etermining 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. Even were this considered a discretionary matter, the ALJ would have
No. 07-2125 Bowie v. Comm’r of Soc. Sec. Page 7

abused that discretion by failing to exercise it.” Id. at 1133 n.5 (internal citations omitted). In

addition, in a case decided when the grids were new, the Third Circuit remanded a claimant’s case

for further consideration where the ALJ did not “address” the regulation providing that the

Commission “will not apply these age categories mechanically in a borderline situation” and did not

consider which age category best suited the borderline claimant. Kane v. Heckler, 776 F.2d 1130,

1132-34 (3d Cir. 1985).

Both cases are distinguishable, however. Kane was decided prior to the publication of the

HALLEX interpretation regarding application of the medical-vocational guidelines in borderline age

situations. Before this interpretation was published, the standards for application of a higher age

category in a borderline situation were more open-ended, making it less possible for a reviewing

court to conclude, in the absence of an explanation from the ALJ, whether an ALJ’s decision was

supported by substantial evidence when a borderline claimant’s chronological age was used. In this

context, it arguably made more sense to require an ALJ to provide some explanation for the choice

of age categories in borderline situations in order to permit substantial-evidence review. 

With the HALLEX interpretation, however, came a more concrete standard: The ALJ is to

consider, using a sliding scale approach, whether the claimant has presented sufficient additional

vocational adversities to justify use of a higher age category. In the absence of such a showing, “the

adjudicator will use the claimant’s chronological age” and “need not explain his or her use of the

claimant’s chronological age.” This interpretation now makes it easier, in some borderline-age cases

that lack an explanation for age categorization, for a reviewing court to conclude that a decision to

deny benefits is supported by substantial evidence. In particular, in a case such as Bowie’s where

there is no evidence of “additional vocational adversities” or any other consideration that might

justify use of a higher age category—and indeed evidence to the contrary—it is not difficult to

conclude that the ALJ’s benefits decision is supported by substantial evidence despite its lack of an

explicit discussion regarding age categorization. As a general matter, agencies need not explicitly

reject every legal contention for which there is no substantial basis in the record. The Supreme

Court for instance held in National Railroad Passenger Corp. v. Boston & Maine Corp., 503 U.S.

407, 419-20 (1992), that a court may properly defer to an agency’s unstated legal interpretation

where that interpretation was the “only plausible explanation of the issues that the Commission

addressed after considering the factual submissions by all of the parties.” Cf. Heston v. Comm’r of

Soc. Sec., 245 F.3d 528, 535-36 (6th Cir. 2001) (concluding that the ALJ’s decision was supported

by substantial evidence despite the ALJ’s failure to discuss the report on which the claimant relied,

where it was clear from the record that remand for discussion of the report would not change the

outcome).

The Tenth Circuit’s decision in Daniels v. Apfel is also distinguishable. While Daniels was

decided—and its underlying administrative determination was made—after publication of the

HALLEX interpretation regarding borderline age situations, the Daniels court referred to Kane in

support of its conclusion and does not appear to have been aware of the 1993 HALLEX

interpretation. See 154 F.3d at 1135 & n.9 (noting that the Commissioner had provided “virtually

no guidance” on the meaning of not applying age categories mechanically and stating “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” Patterson v. Bowen, 799 F.2d 1455 (11th Cir.

1986)). Daniels is therefore distinguishable on the same basis as Kane.

To the extent that Daniels and Kane may nonetheless be read to hold that 20 C.F.R.

§ 404.1563 imposes on the Commissioner a per se procedural obligation to address explicitly a

claimant’s borderline-age situation in every borderline case, we respectfully disagree.
No. 07-2125 Bowie v. Comm’r of Soc. Sec. Page 8

Conclusion

We affirm the district court’s grant of summary judgment to the Commissioner.
No. 07-2125 Bowie v. Comm’r of Soc. Sec. Page 9

_________________

DISSENT _________________

KAREN NELSON MOORE, Circuit Judge, dissenting. I am writing in dissent because I

believe that we should remand the case as a result of the ALJ’s failure to give any indication in his

decision as to whether he performed the requisite inquiry under 20 C.F.R. § 404.1563. That section

gives the ALJ discretion as to whether to place a claimant falling within a borderline age category

into the next higher age category but mandates that the ALJ “not apply the age categories

mechanically in a borderline situation.” § 404.1563(b). Because Bowie’s age at the time of the

filing of her application for Disability Insurance Benefits was within four and a half months of fifty

years old, § 404.1563(b) required the ALJ to consider first whether Bowie falls within a borderline

age category and, if so, whether Bowie should have been placed within the “approaching advanced

age” category.

I believe that the majority opinion mistakenly concludes that the guidelines set forth in the

Hearings, Appeals and Litigation Law Manual of the Social Security Administration (“HALLEX”)

negate the extensive precedent requiring ALJs to discuss whether a potential borderline case falls

within that category. Instead, I believe that we should follow the lead of the Tenth Circuit decision

in Daniels v. Apfel, 154 F.3d 1129 (10th Cir. 1998), and hold that in potential borderline cases, ALJs

must provide some record of their thought process regarding the requirements of § 404.1563(b). See

also Russell v. Comm’r of Soc. Sec., 20 F. Supp. 2d 1133, 1135, 1136 (W.D. Mich. 1998) (holding

that “when a borderline situation is presented a factual determination must be made as to the

appropriate age category . . . [and that] the ALJ’s failure to explain his choice of age category in a

borderline situation . . . impedes judicial review”); Pickard v. Comm’r of Soc. Sec., 224 F. Supp. 2d

1161, 1169 (W.D. Tenn. 2002) (adopting the Tenth Circuit’s rationale in Daniels and recommending

that the case be remanded because “[t]he ALJ’s failure to address the borderline issue and to explain

his choice of age category . . . impede this court’s ability to review his application of

§ 404.1563(a)”); see also Bush v. Astrue, No. 5:06-00766, 2008 WL 867941, at *7-8 (S.D. W. Va.

Mar. 28, 2008) (citing Russell, 20 F. Supp. 2d at 1136, and remanding the case because the ALJ’s

failure to explain his choice of age category made review impossible); Smith v. Barnhart, No. 00 C

2643, 2002 WL 126107, at *4 (N.D. Ill. Jan. 31, 2002) (adopting the holding in Daniels that the

determination of whether a claimant presents a borderline case is a factual determination and that

the Commissioner has the burden of proof regarding whether a claimant presents a borderline case);

Barrett v. Apfel, 40 F. Supp. 2d 31, 39 (D. Mass. 1999) (describing Daniels as the “best analysis”

of the § 404.1563 and following the reasoning of that decision).

I also find persuasive the Tenth Circuit’s reasoning in Daniels that the Commissioner and

not the claimant has the burden to establish whether a claimant in a potential borderline situation

should be placed in an age category higher than that technically warranted by the claimant’s

chronological age. First, the plain language of § 404.1563(b) states that the Commissioner “will not

apply these age categories mechanically”; placing the burden on the claimant would rewrite the

language of the regulation. Daniels, 154 F.3d at 1134. Second, “[a]pplication of § 404.1563(a) is

a step-five issue, and the burden generally is on the Commissioner at step five.” Id.; see also

Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002) (holding that the burden of proof

rests with the Commissioner at step five).

Additional support for the holding of Daniels rests with 20 C.F.R. § 404.953, which requires

that “[t]he administrative law judge shall issue a written decision that gives the findings of fact and

the reasons for the decision.” § 404.953(a). In a case in which the claimant’s age indicates that he

or she might well fall within a borderline age category, the ALJ’s failure to note that the ALJ has

considered whether a claimant falls within a borderline category and, if so, whether bumping the
No. 07-2125 Bowie v. Comm’r of Soc. Sec. Page 10

claimant up is warranted, constitutes a failure to offer findings of fact and reasons for the decision.

Russell, 20 F. Supp. 2d at 1136.

That the HALLEX guidelines do not require the ALJ to give an explanation for his

discretionary decision not to bump up the age of a claimant with a borderline age status does not

mean that §§ 404.1563 and 404.953 do not require an ALJ to note whether he has even considered

the claimant’s potential borderline status. Once the claimant falls within a borderline status—that

is, his or her age is near that of the next category and bumping him or her up a category would result

in a finding of disability—§ 404.1563 mandates that the ALJ not apply the grid mechanistically.

We cannot review on appeal whether the ALJ did so if the ALJ gives absolutely no indication

whether he or she even considered the claimant’s borderline status. The ALJ does not have to

explain why he decided not to exercise his discretion and bump up the age of a borderline claimant,

though this would be preferable, but at a minimum he has to note that he considered whether to do

so in a non-mechanistic manner.