Held:
A
plaintiff who is six months and one day from an older age category presents a
borderline age situation that requires remand for consideration by the
magistrate judge. The ALJ must make an
individualized determination as to whether plaintiff is more appropriately a
“younger person” or a “person closely approaching advanced age.”
When
describing how the age ranges will be applied, the regulations state:
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 factors of your case. 20
C.F.R. §§ 404.1563(b), 416.963(b) (emphasis added).
The
United States Court of Appeals for the Third Circuit has held that the district
court should remand if (1) the ALJ mechanically applied an age category in a
borderline case and (2) the borderline age analysis could change the ALJ’s
determination of disability. Kane v. Heckler, 776 F.2d 1130, 1133–34 (3d
Cir. 1985). An ALJ must make an individualized determination in a “borderline
situation” because the “assumption [that individuals in certain age ranges have
certain capabilities] becomes unreliable and a more individualized
determination is necessary.” Id. at 1133.
At the
time of the ALJ’s decision, plaintiff was sixth months and one day from her
fiftieth birthday. Had the ALJ considered plaintiff to be “closely approaching
advanced age” instead of a “younger person,” plaintiff would have been found
disabled. R&R at 7–8. Thus, the question is whether six months and one day
presents a borderline age case. If so, the case must be remanded to the ALJ for an individualized
determination about what age range applies to plaintiff upon consideration of
the overall factors in her case.
There is no test to determine when an applicant is “a few
days or a few months” from an older age category. The Third Circuit held that a
claimant who was fifty-four days from his fiftieth birthday presented a
borderline age case. Kane, 776 F.2d at 1133. “Nine months appears to
represent the outer perimeter of what constitutes a borderline case in the
District Courts of the Third Circuit.” Ludvico v. Astrue, No. 08-322,
2008 WL 5134938, at *11 (W.D. Pa. Dec. 5, 2008). District courts in the Eastern
District of Pennsylvania have found that claimants who are six months and three
days from a higher age range present a borderline age case. Anderson v.
Astrue, No. 12-4114 (E.D. Pa. Apr. 3, 2013) (order approving and adopting
the report and recommendation of Magistrate Judge Timothy R. Rice) (finding a
borderline age case when claimant was six months and three days from turning
fifty); Copeland v. Astrue, No. 10-1482 (E.D. Pa. Nov. 22, 2010) (order
approving and adopting the report and recommendation of Magistrate Judge Linda
K. Caracappa) (finding a borderline age case when claimant was six months and
three days from turning fifty-five); see also Williams v. Bowen, No.
86-3763, 1987 WL 9148, at *2 (E.D. Pa. Apr. 6, 1987) (finding that seven months
was borderline).
This
Court concludes that a plaintiff who is six months and one day from an older
age category presents a borderline age situation that requires remand for
consideration by the magistrate judge. On remand, the ALJ must make an
individualized determination as to whether plaintiff is more appropriately a
“younger person” or a “person closely approaching advanced age.”
