Plaintiff filed this action for judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying plaintiff's application for supplemental security income ("SSI) benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
The parties are familiar with the procedural history of this case, which is summarized in the Joint Stipulation. [See JS 2]. In an August 1, 2008 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge (the "ALJ") concluded that plaintiff was "not disabled" under the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 ("the grids").
[Administrative Record ("AR") 64-75].*fn1
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the [Commissioner's] decision, the [Commissioner's] conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).
Plaintiff contends that the ALJ erred in applying the grids in a mechanical fashion in a "borderline age situation." [See JS 4-12].
The ALJ made the following findings. Plaintiff had severe, medically determinable impairments consisting of degenerative disc disease of the lumbar spine and hepatitis C infection, as well as a medically determinable, nonsevere adjustment disorder. [AR 68]. Plaintiff's impairments did not meet or medically equal a listed impairment. [AR 69]. Plaintiff retained the residual functional capacity ("RFC") to perform the full range of light work, and therefore could not perform his past relevant work at the medium level of exertion. [AR 73]. Born on November 15, 1958, plaintiff was currently 49 years old and was a "younger individual." [AR 74]. Plaintiff was "not able to communicate effectively in English, and is considered in the same way as an individual who is illiterate in English." [AR 74]. Plaintiff had no transferable job skills. [AR 74].
The grids direct a finding of "not disabled" for a "younger individual" who is "illiterate or unable to communicate in English" and has unskilled or no past relevant work history. 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 201.00(h)(1), 202.16. A "younger individual" is defined as one who is between the ages of 18 and 49 years old. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h)(1). Plaintiff was 49 years old on the date of the ALJ's decision and thus was a "younger individual." However, the regulations also state that "[f]or individuals who are age 45-49, age is a less advantageous factor for making an adjustment to other work than for those who are age 18-44." 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h)(1). Individuals aged 50 to 54 are defined as persons "closely approaching advanced age," and once a person attains age 50, age is considered "a factor which significantly limits vocational adaptability...." 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.00(d); see 20 C.F.R. §§ 404.1563(d), 416.963(d). When individuals closely approaching advanced age are limited to light work, have no past work experience or can no longer perform vocationally relevant past work, have no transferable skills, and the "individual's vocational scope is further significantly limited by illiteracy and inability to communicate in English, a finding of disability is warranted." 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.00(d). Thus, if plaintiff had attained the age of 50 by the date the ALJ issued his decision, the grids would have directed a finding of not disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.09.
Although the grid rules rely on bright-line age categories, the Commissioner's regulations state that "[w]e 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(d), 416.963(d); see Heckler v. Campbell, 461 U.S. 458, 462 n.5 (1983)(explaining that the grid rules "only describe major functional and vocational patterns," and that by declaring that ALJs "will not apply the age categories mechanically in a borderline situation" and recognizing that some limitations are not factored into the grid rules, "the regulations provide that the rules will be applied only when they described a claimant's abilities and limitations accurately")(internal quotation marks and citations omitted); Russell v. Bowen, 856 F.2d 81, 85 (9th Cir. 1988)("[T]his court has held that 'the regulation specifically provides that age categories will not be applied 'mechanically in a borderline situation.'")(ellipsis omitted)(quoting Calvin v. Heckler, 782 F.2d 802, 805 (9th Cir.1986) and 20 C.F.R. § 404.1563(a) (1987), and citing Gonzales v. Sec'y of Health & Human Servs., 784 F.2d 1417, 1420 (9th Cir.1986)("It is incumbent upon the Secretary to decrease his reliance upon the grids in cases where the individual claimant's circumstances approach the upper limits of the grid's guidelines.")); see also SSR 86-8, 1986 WL 68636, at *6 (stating that age categories are "not arbitrary limits" and "are not applied mechanically in borderline cases"); SSR 83-10, 1983 WL 31251, at *8 ("The regulations provide that older age is an increasingly adverse vocational factor for persons with severe impairments. The chronological ages 45, 50, 55 and 60 may be critical to a decision. However, the regulations also provide that age categories are not applied mechanically in borderline situations."); SSR 82-46c, 1982 WL 31427, at *6, *8 (stating that a borderline situation "exists when there would be a shift in results caused by 'the passage of a few days or months,'" and that the grid age guidelines are to be applied "flexibly to avoid dramatic shifts in results")(quoting 43 Fed.Reg. 55349, 55359 (1978)).
Plaintiff argues that because he was 49 years, 8 months, and 17 days old on the date of the ALJ's decision, the ALJ should not have applied the grids in a mechanical fashion, that is, without considering whether his "borderline" age warranted application of the "closely approaching advanced age" category using a flexible application of the grids. Plaintiff's argument has merit.
The Commissioner's regulations state that a borderline situation exists if: (1) " you are within a few days to a few months of reaching an older age category," and (2) "using the older age category would result in a determination or decision that you are disabled...." 20 C.F.R. §§ 404.1563(b), 416.963(b). "No fixed guidelines as to when a borderline situation exists are provided ...