CAMPBELL v. COLVIN
Filing
13
MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 12/9/2015, that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence four of 42 U .S.C. § 405(g). The Commissioner is directed to remand the matter to the ALJ for proceedings consistent with this Order. To this extent, the defendant's Motion for Judgment on the Pleadings, (Doc. 11 ), is DENIED, and the plaintiff's Motion for Judgment on the Pleadings, (Doc. 7 ), is GRANTED. However, to the extent that the plaintiff's motion seeks an immediate award of benefits, it is DENIED. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KENNETH W. CAMPBELL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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1:15-CV-165
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Plaintiff Kenneth Campbell brought this action to obtain judicial review of a final
decision of the Commissioner of Social Security denying his claim for Disability
Insurance Benefits under Title II of the Act. The parties have filed cross-motions for
judgment, and the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Mr. Campbell filed his application for Disability Insurance Benefits on June 3,
2011, alleging a disability onset date of May 11, 2005. (Tr. at 169-70.)1 After Mr.
Campbell’s application was denied initially, (Tr. at 60-70), and upon reconsideration, (Tr.
at 71-82), he requested a hearing de novo before an Administrative Law Judge, (“ALJ”).
(Tr. at 27-28.) After a hearing, the ALJ determined that Mr. Campbell was not disabled
within the meaning of the Act. (Tr. at 26.) On December 21, 2014, the Appeals Council
1
Transcript citations refer to the Sealed Administrative Record. [Doc. 4.]
denied Mr. Campbell’s request for review, thereby making the ALJ’s conclusion the
Commissioner’s final decision for purposes of judicial review. (Tr. at 1-4.)
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s
denial of social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
“[T]he scope of [the court’s] review of [such an administrative] decision . . . is extremely
limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). A reviewing court must
uphold the factual findings of the ALJ underlying the denial of benefits if they are
“supported by substantial evidence” and “were reached through application of the correct
legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal citations
omitted.)
The issue “is not whether [the claimant] is disabled, but whether the ALJ’s finding
that [the claimant] is not disabled is supported by substantial evidence and was reached
based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996). In making this determination, the court must consider whether the ALJ
analyzed all of the relevant evidence and sufficiently explained the findings and rationale
for crediting or discrediting probative evidence. See Sterling Smokeless Coal Co. v.
Akers, 131 F.3d 438, 439-40 (4th Cir. 1997); Woody v. Barnhart, No. 6:05 CV 00045,
2006 WL 2349939, at *2 (W.D. Va. Aug. 14, 2006) (Recommendation of thenMagistrate Judge Urbanski), adopted in full, December 15, 2006 (Hon. Norman K.
Moon.)
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III.
THE ALJ’S DECISION
The ALJ here followed the well-established five-step process to evaluate disability
claims. See Hancock, 667 F.3d at 472.2 The ALJ found at step one that Mr. Campbell
had not engaged in substantial gainful activity since his alleged onset date. He therefore
met his burden at this first step of the sequential evaluation process. At step two, the ALJ
determined that Mr. Campbell suffered from several severe impairments: degenerative
disc disease of the cervical spine, arthritis, hypertension, chronic obstructive pulmonary
disease, and carpal tunnel syndrome. (Tr. at 18.) The ALJ then found at step three that
these impairments did not meet or equal a disability listing. Accordingly, he assessed
Mr. Campbell’s residual functional capacity (“RFC”) and determined that Mr. Campbell
could perform light work with additional manipulative and environmental limitations.
(Tr. at 20.) At step four, the ALJ found that Mr. Campbell’s past relevant work exceeded
his RFC. (Tr. at 24.)
At step five, the ALJ first evaluated whether the Medical–Vocational Guidelines –
the “grids” – governed.3 The ALJ found that Mr. Campbell fell into the “closely
approaching advanced age” category, and that he had a high school education and could
communicate in English. (Tr. at 25.) Under these facts, and regardless of whether his
skills were transferable, the ALJ noted that the grids would dictate a finding of “not
disabled” if Mr. Campbell were able to do the full range of light work. Because Mr.
2
Under this five-step process, “the Commissioner asks, in sequence, whether the
claimant: (1) worked during the alleged period of disability; (2) had a severe impairment; (3) had
an impairment that met or equaled the requirements of a listed impairment; (4) could return to
her past relevant work; and (5) if not, could perform any other work in the national economy.”
Id.
3
The grids are contained in 20 C.F.R. Chapter III, Part 404, Subpart P, Appendix 2.
3
Campbell had limitations on his ability to do light work, the ALJ used the grids as a
framework for decision. (Tr. at 25.) He then consulted a vocational expert, who testified
that an individual with Mr. Campbell’s age, education, work experience, and RFC
remained capable of performing other jobs that exist in significant numbers in the
national economy. (Tr. at 25-26.) Based on this testimony, the ALJ concluded that Mr.
Campbell was not disabled under the Act. (Tr. at 26.)
IV.
ISSUE
Mr. Campbell now argues that the ALJ erred at step five by failing to consider his
borderline age situation. Specifically, he contends that because he was very close to the
next age group of “advanced age,” the ALJ was required to evaluate whether it was more
appropriate to place Mr. Campbell in the “advanced age” category of the grids, and that
the ALJ’s failure to do so requires remand for reconsideration. The Commissioner
contends that the ALJ was not required to explicitly reference the borderline age issue or
to explain the analysis in his opinion.
V.
ANALYSIS
At step five of the sequential analysis, the Commissioner, rather than the plaintiff,
carries the “evidentiary burden of proving that [the claimant] remains able to work other
jobs available in the community.” Hines, 453 F.3d at 567; 20 C.F.R. § 404.1520(a)(4)(v).
When a claimant’s qualifications correspond to the job requirements identified by a
particular rule within the grids, the grids direct a conclusion as to whether work exists
that the claimant could perform. Heckler v. Campbell, 461 U.S. 458, 462 (1983); see
also Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985). However, if a
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claimant’s RFC includes limitations beyond those contemplated in the grids, the grids are
not dispositive. Although the grids still provide a framework for decisions in such cases,
Wilson v. Heckler, 743 F.2d 218, 222 (4th Cir. 1984), testimony from a vocational expert
is required for the Commissioner to meet the step five evidentiary burden. McLain v.
Schweiker, 715 F.2d 866, 870 n.1 (4th Cir. 1983).
The grids consist of a matrix of 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. at 461-62. As to age, there are four
categories: (1) closely approaching retirement age (60–64); (2) advanced age (55–59);
(3) closely approaching advanced age (50–54); and (4) younger individual (18–49). 20
C.F.R. § 404.1563. Under the regulations, age is considered as a factor affecting the
ability to make a vocational adjustment to other work in the economy; for claimants
“closely approaching advanced age” (age 50-54), age, along with a severe impairment(s)
and limited work experience, “may seriously affect [the] ability to adjust” to other work,
and for claimants of “advanced age” (55 and over), age “significantly affects a person’s
ability to adjust to other work.” 20 CFR § 404.1563(d)-(e).
The regulations specifically require that factfinders must “not apply the age
categories mechanically in a borderline situation.” 20 C.F.R. § 404.1563(b). Instead, if a
claimant is “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 [the claimant
is] disabled, [the ALJ] will consider whether to use the older age category after
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evaluating the overall impact of all the factors of [the claimant’s] case.” 20 C.F.R. §
404.1563(b); see generally, Hofler v. Astrue, No. 4:11cv172, 2013 WL 442118, at *6
(E.D. Va. Jan. 9, 2013) (Recommendation of Magistrate Judge Miller), adopted in full,
2013 WL 442880 (E.D. Va. Feb 5, 2013).
Here, Mr. Campbell was 54 years old as of December 31, 2011, the date he was
last insured. (Tr. at 18, 25.) He turned 55 on June 20, 2012, not quite six months later.4
Despite this, the ALJ did not evaluate whether it was appropriate to apply the “advanced
age” of 55-to-59. Nor did the ALJ determine whether using that older age category of
55-to-59 would result in a determination under the grids that Mr. Campbell was disabled.
For purposes of this motion, it appears undisputed that the grids would require a finding
of Disabled under the grids if Mr. Campbell was considered to be of “advanced age” and
if the ALJ found his skills were not transferrable.5 Accordingly, the sole remaining issue
is whether the ALJ’s failure to explicitly evaluate the applicability of the “advanced age”
category constituted reversible error.
Internal guidance within the Social Security Administration is inconsistent and
ambiguous on this point. See Ash v. Colvin, No. 2:13-CV-47, 2014 WL 1806771, at *7
4
Six months arguably falls within the borderline range contemplated by the regulations.
Amick v. Colvin, No. 5:12-0922, 2013 WL 4046349, at *4 n.1 (S.D. W. Va. Aug. 8, 2013)
(collecting cases); France v. Apfel, 87 F. Supp. 2d 484, 491-492 (D. Md. 2000); see also POMS,
DI 25015.005 Age as a Vocational Factor, http://policy.ssa.gov/poms.nsf/lnx/0425015005 (last
visited Dec. 9, 2015).
5
Mr. Campbell contends that he would be found disabled under the grids if he was
considered to be of “advanced age” and if his skills were not transferable. (See Pl’s Br. [Doc 8]
at 9-10 and n.7.) The Commissioner did not address this contention, and the Court assumes
without deciding that this is so. The ALJ did not discuss whether Mr. Campbell’s skills were
transferable, since that finding was not determinative under the “closely approaching advanced
age” grid.
6
(N.D. W. Va. May 7, 2014)(adopting Recommendation); Hofler, 2013 WL 442118, at
*7-8. However, significant authority, including a plain reading of the regulations
themselves, supports a requirement for explicit consideration of borderline age situations.
As noted supra, ALJs are required to apply the age categories in a non-mechanical
manner, Gory v. Schweiker, 712 F.2d 929, 930–31 (4th Cir. 1983), as well as to “consider
whether to use the older age category after evaluating the overall impact of all the factors
of [the claimant’s] case,” 20 C.F.R. § 404.1563(b). A failure to explain this
consideration in a case where it potentially applies and is potentially determinative in
favor of the claimant makes the ALJ’s decision virtually unreviewable. Mascio v. Colvin,
780 F.3d 632, 636 (4th Cir. 2015) (noting in a different context that a failure to assess a
disputed issue “frustrate[s] meaningful review.”) This is particularly problematic
because the burden of proof is on the Commissioner at step five.
Significant case law supports Mr. Campbell’s position that the ALJ is required to
explain when the decision is made not to “round up” in a borderline age situation. The
Eighth and Tenth Circuits have found insufficient evidence exists to support the ALJ’s
opinion where the ALJ failed to make express findings about the age category
determination in borderline cases. Phillips v. Astrue, 671 F.3d 699, 707 (8th Cir. 2012);
Daniels v. Apfel, 154 F.3d 1129, 1136 (10th Cir. 1998).6 While there is no Fourth Circuit
case on point, many district courts in the Fourth Circuit have required the ALJ to provide
some analysis and make express findings in borderline age situations. See Hofler, 2013
6
The Third Circuit has agreed in an unpublished opinion. Lucas v. Barnhart, 184 F.
App’x 204, 208 (3rd Cir. 2006).
7
WL 442118, at *8 (collecting cases). The Court finds the reasoning of these cases
persuasive,7 and agrees that in borderline age cases the ALJ should discuss the potential
applicability of the higher age category.
The Commissioner acknowledges the above-cited cases, but contends that the
Fourth Circuit is “unlikely to impose” a requirement that the borderline age analysis be
explicit, citing Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011). In that case, the
regulations required that the Appeals Council consider new evidence, but did not require
the Council to make explicit findings about the evidence when denying review. Id.
However, the Meyer decision also noted that
[t]he Appeals Council’s denial of a request for review differs sharply from
an ALJ’s decision. Social Security regulations do explicitly require the
ALJ to issue decisions supported by “findings of fact and the reasons for
the decision.” In contrast, the regulations do not require the Appeals
Council to articulate its rationale for denying a request for review.
Id. at 705-06 (citations omitted). In light of this distinction, the Commissioner’s reliance
on Meyer is misplaced.
The Commissioner also argues that any error was harmless because there is
nothing to indicate Mr. Campbell has vocational adversities8 that would require use of the
older age category. (Def.’s Br. [Doc. 12] at 9.) As noted by a sister court, “a review of
the case law indicates that the extent to which the ALJ is required to provide analysis and
7
While there is some authority to the contrary, see Caudill v. Commissioner, 424 F.
App’x, 510, 517 (6th Cir. 2011), Lockwood v. Commissioner, 616 F.3d 1068, 1071-72 (9th Cir.
2010), Miller v. Commissioner, 241 F. App’x 631, 635 (11th Cir. 2007), those cases are either
distinguishable or not persuasive.
8
In the borderline age context, vocational adversities are factors, other than age or other
factors already accounted for under the grids, which render a claimant “relatively less able to
make an adjustment to other work than an individual in the next higher age category who is
nonetheless conclusively presumed disabled under the grids.” Ash, 2014 WL 1806771, at *7.
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make express findings in borderline age situations often depends on whether additional
vocational adversities exist in the record.” Ash, 2014 WL 1806771, at *7; cf. Mascio,
780 F.3d at 639 (noting in a different context that a failure to explain credibility in one
part of a decision is harmless if it is properly analyzed elsewhere). While the Court
agrees with the Ash court that remand is not required if “there is clearly no evidence in
the record suggesting the presence of any additional vocational adversities,” Ash at *7,
that is not the case here. Just as in Ash, the claimant here has exertional impairments
which infringe upon his occupational base, as determined by the ALJ in deciding the
plaintiff's RFC and as testified to by the vocational expert. (See Tr. at 20.) The Court is
not in a position to determine this question on the cold record. Remand is more
appropriate so the ALJ can evaluate the question in the first instance.
In a related argument, the Commissioner contends that the ALJ fully took into
account any potential “additional vocational adversities” because those “adversities”
were reflected in Mr. Campbell’s RFC, and the VE testified that there were jobs available
for someone with Mr. Campbell’s RFC. (Def.’s Br. at 11.) This puts the cart before the
horse; if Mr. Campbell should have been given the benefit of the “advanced age”
category and his skills were not transferable, then the grids compel a finding of Disabled
and the testimony of a VE is irrelevant.
Because Mr. Campbell was in a borderline age situation and the ALJ failed to
indicate that he had considered whether the higher age category should apply and failed
to provide any explanation for not applying the higher age category, remand is required.
The Court expresses no opinion on what the result of such reconsideration should be.
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IT IS THEREFORE ORDERED that the Commissioner’s decision finding no
disability be REVERSED, and that the matter be REMANDED to the Commissioner
under sentence four of 42 U.S.C. § 405(g). The Commissioner is directed to remand the
matter to the ALJ for proceedings consistent with this Order. To this extent, the
defendant’s Motion for Judgment on the Pleadings, [Doc. 11], is DENIED, and the
plaintiff’s Motion for Judgment on the Pleadings, [Doc. 7], is GRANTED. However, to
the extent that the plaintiff’s motion seeks an immediate award of benefits, it is DENIED.
This the 9th day of December, 2015.
_________________________________
UNITED STATES DISTRICT JUDGE
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