Jones v. Astrue - ED Pa - July 10, 2012
http://www.paed.uscourts.gov/documents/opinions/12D0666P.pdf
It is undisputed that if the ALJ had placed claimant -- 2 weeks from his 55th birthday -- in the higher category of “person of advanced age,” the grids would have directed a finding of disabled. However, despite Jones’s proximity to age fifty-five, the ALJ’s decision neither referred to a “borderline situation” nor cited 20 CFR §§ 404.1563(b) or 416.963(b). The decision did not consider which age category best described Jones’s ability to adjust to new work, but stated only that he was “a person closely approaching advanced age” based on his chronological age, contrary to the Third Circuit’s holding in Kane v. Heckler, where the Third Circuit held that the regulations require the ALJ to explicitly acknowledge a borderline situation and to determine which age category best describes the claimant’s ability to adjust to new work. 776 F.2d at 1132-34.
Following Kane, Jones’s proximity to age fifty-five at the time of the ALJ’s decision presented a borderline situation. Sections §§ 404.1563(b) and 416.963(b) require the Commissioner to consider the use of the higher age category in such situations. The ALJ was at least required to address the application of §§ 404.1563(b) and 416.963(b) to Jones’s case and explain why he used the lower age category.
The court rejected the Commissioner’s argument that the ALJ adequately considered Jones’s ability to adapt to new work by soliciting testimony from the VE. It noted that the ALJ never addressed the existence of a borderline situation during his colloquy with the VE, but instead asked the VE to assume at all times that Jones was categorized as a person closely approaching advanced age. The court also also held that HALLEX did not relieve the ALJ from explicitly recognizing the borderline situation as required by Kane because HALLEX is not legally binding.
