FINDINGS AND RECOMMENDATIONS
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Income Benefits ("DIB") under Title II of the Social Security Act. For the reasons discussed below, the court recommends that plaintiff's motion for summary judgment or remand be granted, that the Commissioner's cross-motion for summary judgment be denied, and that the case be remanded for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff applied for disability insurance benefits on January 2, 2000, with a protective filing date of December 21, 1999. Administrative Record ("AR") at 16. Plaintiff alleged disability since June 1, 1994, due to back and left shoulder injuries. Id.
On March 9, 2000, his application was denied at the initial level.*fn1 Id. Plaintiff filed a request for reconsideration on March 30, 2000. Id. On June 14, 2000, plaintiff's application was denied on reconsideration. Id. On June 30, 2000, plaintiff filed a request for a hearing. Id.
On September 20, 2001, a hearing was held before administrative law judge ("ALJ") Charles Reite. Id. On December 3, 2001, the ALJ denied plaintiff's application. Id. at 16. The Appeals Council vacated that decision and remanded the case to the ALJ for further proceedings. Id. On remand a further hearing was held in September 2003 and the ALJ again denied plaintiff's application. The Appeals Council denied review of that denial. Id. at 556.
On appeal to the district court, Magistrate Judge Gregory G. Hollows and District Judge Morrison C. England, Jr. held that the findings in the ALJ's final decision were supported by substantial evidence. Id. at 573-74. The court denied plaintiff's motion for summary judgment and/or remand and granted the Commissioner's cross-motion for summary judgment, entering judgment for the Commissioner. Id. at 573-74.
Plaintiff appealed to the U.S. Court of Appeals for the Ninth Circuit which remanded the case on the basis of the "borderline age" category rule. Id. at 574-77. The Court wrote:
An Administrative Law Judge ("ALJ") must consider whether an older age category would be more appropriate when "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." 20 C.F.R. § 404.1563(b). Schiel was fifty-four years and eleven months old on the date he was last insured. Under Medical-Vocational Guidelines Rule 202.02, a person one month older than Schiel with non-transferable skills or semi-skills would be deemed disabled. Since the grids might enable a finding of disability, the ALJ must consider application of the older age category. Additionally, Swenson v. Sullivan, 876 F.2d 683, 688 (9th Cir.1989), requires that the ALJ reject any vocational expert testimony inconsistent with the consideration required by the grids. Id. ("[T]he regulations [ ] require the Secretary to reject vocational testimony that is inconsistent with the grids' overall framework.").
The hearing transcripts and ALJ decision do not reflect consideration of Schiel's borderline age status. Although the ALJ sought testimony of a vocational expert, he directed the expert not to consider age in his testimony. Moreover, the discussion section of the ALJ's decision makes no mention of 20 C.F.R. § 404.1563(b) or the claimant's one-month proximity to "person of advanced age" status under 20 C.F.R. § 404.1563(e). For these reasons, the record does not provide sufficient basis for review. We conclude that the other challenges by Schiel to the ALJ's findings are without merit. Substantial evidence supports the findings regarding mental impairments and residual functional capacity.
Following a post-remand third hearing, ALJ Thomas T. Tielens denied plaintiff's application. Id. at 556. ALJ Tielens entered the following findings:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 1999...
2. The claimant did not engage in substantial gainful activity (SGA) during the period from his alleged onset date of June 1, 1994 through his date last insured of December 31, 1999 (20 CFR 404.1571 et seq.).
Claimant was born on January 26, 1945 and is 63 years old. He testified at the prior hearing on September 20, 2001 that he completed the eleventh grade.... Claimant worked as a security guard at a race track from 1988 to 1994.... I find that claimant's past relevant work was as a security guard....
3. Through the date last insured, the claimant had the following severe impairments: lumbar degenerative disc disease...; left shoulder injury in 1979, by history...; bipolar disorder; and paranoid personality disorder... (20 CFR 404.1521 et seq.)....
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, ...