United States v. 2010-08-16 | 09-35546 | Claburn Lockwood V. Commissioner Social Security A |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CLABURN M. LOCKWOOD,
Plaintiff-Appellant, No. 09-35546
v. D.C. No.
 3:07-cv-01838-KICOMMISSIONER SOCIAL SECURITY
ADMINISTRATION, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued and Submitted
May 3, 2010—Portland, Oregon
Filed August 16, 2010
Before: Andrew J. Kleinfeld, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Bea
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COUNSEL
Linda S. Ziskin (argued), Lake Oswego, Oregon, and Richard
A. Sly, Portland, Oregon, for the plaintiff-appellant.
Kent S. Robinson, Acting United States Attorney, Adrian L.
Brown, Assistant United States Attorney, David Morado,
Regional Chief Counsel, and Stephanie R. Martz (argued),
Assistant Regional Counsel, Social Security Administration,
Seattle, Washington, for the defendant-appellee.
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OPINION
BEA, Circuit Judge:
The issue in this case is whether an administrative law
judge (“ALJ”) erred when she failed to explain in her written
decision why she treated a social security disability benefits
claimant as being a person closely approaching advanced age
instead of treating the claimant as being a person of advanced
age. We hold the ALJ did not err because she was required by
regulation only to consider whether to use the older age cate-
gory. The ALJ satisfied this requirement.
Social security regulations divide claimants into three age
categories: younger persons (those persons under age 50),
persons closely approaching advanced age (those persons age
50-54), and persons of advanced age (those persons age 55 or
older). 20 C.F.R. § 404.1563(c)-(e). Where a claimant is
within a few days or a few months of reaching an older age
category (a “borderline situation”), an ALJ has discretion, but
is not required, to use the older age category. Id.
§ 404.1563(b).
Here, Claburn Lockwood (“Lockwood”) was one month
and three days from turning 55 years old (and, thus, from
becoming a person of advanced age) when the ALJ denied
Lockwood’s claim for social security disability benefits. The
ALJ treated Lockwood as being a person closely approaching
advanced age—instead of using the older age category—and
concluded that Lockwood was not disabled. The ALJ did not
explain in her decision why she did not treat Lockwood as
being a person of advanced age. The district court affirmed
the ALJ’s decision.
Lockwood contends, and the Commissioner of Social
Security does not dispute, that the ALJ would have been
required to conclude that Lockwood was disabled if the ALJ
had treated Lockwood as being a person of advanced age.
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Thus, Lockwood contends the ALJ committed reversible error
by failing to explain in her decision why she used Lock-
wood’s chronological age—54 years old.
Although an ALJ is required by regulation to consider
whether to use an older age category in a borderline situation,
there is no requirement that the ALJ explain in her written
decision why she did not use an older age category. See 20
C.F.R. § 404.1563(b). On the facts of this case, the ALJ did
not err when she did not address in her written decision the
fact that Lockwood was just over one month from being a
person of advanced age. Therefore, we affirm.1
I. Background
In 2003, Lockwood applied for disability insurance benefits
under Title II of the Social Security Act and supplemental
security income under Title XVI of the Act. After Lock-
wood’s applications were denied, she requested a hearing
before the ALJ. The ALJ held two hearings: one on June 2,
2005, at which Lockwood appeared and testified, and another
on October 13, 2005, at which Lockwood did not appear.
The ALJ filed a decision on April 27, 2006, in which she
concluded that Lockwood was not disabled. The ALJ applied
the standard five-step test to determined whether Lockwood
was disabled. See 20 C.F.R. § 404.1520. The ALJ found at
Step 1 that Lockwood “ha[d] not engaged in substantial gain-
ful activity at any time relevant to this decision” because
Lockwood received no income from her work as a freelance
artist—the only work she did after January 1999. At Step 2,
the ALJ found Lockwood “ha[d] the following severe impair-
ments: left knee injury and surgeries; degenerative disc dis-
ease of the lumbar spine with a history of fusion; a history of
foot surgery; anxiety; a depressive disorder; and alcoholism.”
1In a memorandum disposition filed concurrently with this opinion, we
address other claims raised by Lockwood.
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At Step 3, the ALJ found Lockwood “d[id] not have an
impairment or combination of impairments that meets or med-
ically equals any of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.”
The ALJ found Lockwood “has the residual functional
capacity to lift 20 pounds occasionally and 10 pounds fre-
quently. She can stand and walk 6 hours out of an 8-hour day
and sit 6 hours out of an 8-hour day. She can do simple and
complex tasks not requiring close or frequent social contact
with the public or others.” Based on Lockwood’s residual
functional capacity, the ALJ found at Step 4 that Lockwood
“is unable to perform any past relevant work.” Lockwood’s
“past relevant work” included her work “as an operator of a
bed and breakfast and a bread seller,” work that requires fre-
quent contact with the public. However, at Step 5, the ALJ
found that, “[c]onsidering [Lockwood’s] age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy that
[Lockwood] can perform.” That finding was based on the tes-
timony of a vocational expert who identified “production
assembler” and “house cleaner” as examples of jobs Lock-
wood could perform. Therefore, the ALJ concluded Lock-
wood was not disabled. The district court affirmed.
II. Standard of Review
We review de novo a district court’s order that affirms an
ALJ’s denial of benefits. Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005). We must uphold an ALJ’s decision so
long as it is supported by substantial evidence and is not
based on legal error. Id. Further, even if the ALJ erred, we
will uphold the decision so long as the error was harmless. Id.
III. Discussion
[1] A claimant makes a prima facie showing of disability
where, as here, the claimant has established that she suffers
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from a severe impairment that prevents her from doing past
work. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999).
Once the claimant makes such a showing, the Commissioner
of Social Security (“Commissioner”) bears the burden of
“show[ing] that the claimant can perform some other work
that exists in ‘significant numbers’ in the national economy,
taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id. The Com-
missioner can meet this burden in one of two ways: “(a) by
the testimony of a vocational expert, or (b) by reference to the
Medical-Vocational Guidelines [“the grids”] at 20 C.F.R. pt.
404, subpt. P, app. 2.” Id. at 1101 (emphasis omitted).
[2] The grids are matrices of the “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 sig-
nificant numbers in the national economy.” Heckler v. Camp-
bell, 461 U.S. 458, 461-62 (1983) (footnotes omitted). For
purposes of applying the grids, there are three age categories:
younger person (under age 50), person closely approaching
advanced age (age 50-54), and person of advanced age (age
55 or older). 20 C.F.R. § 404.1563(c)-(e). The regulation also
provides:
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 impact of all the factors
of your case.
Id. § 404.1563(b) (emphasis added). It is clear from the text
of this regulation that an ALJ is not required to use an older
age category, even if the claimant is within a few days or a
few months of reaching an older age category. Id.; see Bowie
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v. Comm’r, 539 F.3d 395, 399-401 (6th Cir. 2008) (holding
that section 404.1563(b) “does not impose on ALJs a per se
procedural requirement to address borderline age categoriza-
tion in every borderline case”).
[3] Here, the ALJ satisfied the requirement that she con-
sider whether to use the older age category.2 The ALJ men-
tioned in her decision Lockwood’s date of birth and found
that Lockwood was 54 years old and, thus, a person closely
approaching advanced age on the date of the ALJ’s decision.
Clearly the ALJ was aware that Lockwood was just shy of her
55th birthday, at which point she would become a person of
advanced age. The ALJ also cited to 20 C.F.R. § 404.1563,
which prohibited her from applying the age categories
mechanically in a borderline situation. Thus, the ALJ’s deci-
sion shows that the ALJ knew she had discretion “to use the
older age category after evaluating the overall impact of all
the factors of [Lockwood’s] case.”3 20 C.F.R. § 404.1563(b).
Finally, we are satisfied the ALJ did not “apply the age cate-
gories mechanically” because the ALJ “evaluat[ed] the over-
all impact of all the factors of [Lockwood’s] case” when the
ALJ relied on the testimony of a vocational expert before she
found Lockwood was not disabled.4 Id.
2We need not and do not decide whether there must be at least some
evidence in the ALJ’s written decision that the ALJ considered the border-
line age situation because, here, such evidence does appear in the ALJ’s
written decision.
3We presume that ALJs know the law and apply it in making their deci-
sions. Cf. Walton v. Arizona, 497 U.S. 639, 653 (1990) (“Trial judges are
presumed to know the law and to apply it in making their decisions.”),
overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002).
4The Tenth Circuit’s decision in Daniels v. Apfel, 154 F.3d 1129 (10th
Cir. 1998), did not address the issue before us here, because in that case,
the government argued only that the petitioner failed to carry his burden
of proving he should be classified in the higher age bracket, and did not
cite or raise any arguments regarding the correct interpretation of the pre-
decessor to § 404.1563(b). Id. at 1133. Here, by contrast, the government
argues, and we agree, that under the plain language of § 404.1563(b) the
ALJ needed to show only that she considered whether to use the older age
category. To the extent that Daniels interprets the regulation as requiring
an ALJ to do anything more, see 154 F.3d at 1134 n.5, we join the Sixth
Circuit in respectfully disagreeing, Bowie, 539 F.3d at 403.
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[4] Lockwood argues that the ALJ committed reversible
error because she failed to consider the requirements laid out
in the Commissioner of Social Security’s Hearings, Appeals,
and Litigation Manual (“HALLEX”), an internal Social
Security Administration policy manual. However, HALLEX
does not impose judicially enforceable duties on either the
ALJ or this court. See Clark v. Astrue, 529 F.3d 1211, 1216
(9th Cir. 2008). Moreover, our holding that an ALJ does not
commit reversible error as long as she considers whether to
use the older age category is consistent with HALLEX. See
Bowie, 539 F.3d at 399-400 (explaining that HALLEX does
not require an ALJ to address borderline situations in every
written decision). In relevant part, HALLEX instructs ALJs to
consider “additional vocational adversities” that could justify
the use of the higher age category, and states that “[a]bsent a
showing of additional adversity(ies) justifying the use of the
higher age category . . . . [t]he adjudicator need not explain
his or her use of the claimant’s chronological age.” Here
Lockwood does not identify any additional vocational adver-
sities that would have given the ALJ reason to treat Lock-
wood as a person of advanced age.
[5] In addition to citing HALLEX, Lockwood relies on
another internal Social Security Administration guidance doc-
ument, the Program Operations Manual System (“POMS”), to
support her contention that the ALJ was required to explain
in her written decision why she decided to use Lockwood’s
chronological age rather than the next higher age category.
The version of POMS to which Lockwood cites provides:
Anytime a borderline age situation exists, the adjudi-
cator must state whether it was determined to use the
next higher age category or to use the individual’s
chronological age and explain why. The specific fac-
tors supporting either determination must be
explained.
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POMS DI 25015.005(B)(4) (effective only between May 25,
2006 and July 20, 2006). Like HALLEX, POMS constitutes
an agency interpretation that does not impose judicially
enforceable duties on either this court or the ALJ. See Lowry
v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003). Such
agency interpretations “are ‘entitled to respect,’ ” but “only to
the extent that those interpretations have the ‘power to per-
suade.’ ” Christensen v. Harris Cnty., 529 U.S. 576, 587
(2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)); see Clark, 529 F.3d at 1216. We are not persuaded
by the cited section of POMS that the statute and regulations
require the ALJ to provide further explanation with specific
factors, for several reasons. First, the version of POMS in
effect on April 27, 2006—the time of the ALJ’s decision—did
not require the ALJ to provide an express explanation of the
borderline age issue.5 Therefore, the version of POMS cited
by Lockwood was not even applicable when the ALJ made
her decision on April 27, 2006. Moreover, the later version of
POMS cited by Lockwood is inconsistent with the guidance
in HALLEX, discussed above.6 The Social Security Adminis-
5The version of POMS in effect on April 27, 2006, simply parroted 20
C.F.R. § 404.1563(b):
We will not apply the age categories mechanically in a borderline
situation. If an individual is within a few days to a few months
of reaching an older age category, and using the older age cate-
gory would result in a determination or decision that the individ-
ual is disabled, we will consider whether to use the older age
category after evaluating the overall impact of all the factors of
the individual’s case.
POMS DI 25015.005(A)(3) (effective June 20, 2002 through May 24,
2006).
6HALLEX instructs the ALJ to consider “additional vocational adversi-
ties”; where such adversities are absent, the ALJ need not explain her
decision to use the claimant’s chronological age. In contrast, the version
of POMS cited by Lockwood would require an explanation of “specific
factors” supporting the ALJ’s decision to use the claimant’s chronological
age. Based on this inconsistency, neither the relevant HALLEX guidance
nor the relevant POMS guidance has the “power to persuade.” Skidmore,
323 U.S. at 140.
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tration’s lack of a consistent direction weighs against giving
POMS any substantial weight. See Skidmore, 323 U.S. at 140.
Finally, the POMS guidance is not a persuasive interpretation
of the regulation. The regulation at issue here requires only
that the ALJ consider whether to use the older age category;
it does not impose any obligation to make express findings
incorporated in the ALJ’s opinion.
Our holding is also consistent with the Sixth Circuit’s hold-
ing in Bowie. In Bowie, the claimant was less than two
months from a higher age category. 539 F.3d at 397. The ALJ
concluded in his written decision that the claimant was a
younger individual and cited 20 C.F.R. § 404.1563, which
prohibited him from applying the age categories mechani-
cally. Id. However, the ALJ “did not explicitly address the
possibility that [the claimant], less than two months shy of her
50th birthday, presented a ‘borderline’ situation, and he did
not discuss the possibility of moving [the claimant] to the
‘closely approaching advanced age’ category.” Id. The district
court affirmed the ALJ’s denial of benefits. Id. at 398.
On appeal, the Sixth Circuit affirmed and explained that the
ALJ was not required by regulation “to address a claimant’s
borderline age situation in his opinion or explain his thought
process in arriving at a particular age-category determination.
Rather, the regulation merely promises claimants that the
[Social Security] Administration will ‘consider’ veering from
the chronological-age default in borderline situations.” Id. at
399. The Sixth Circuit explained that the ALJ’s ultimate dis-
ability determination was supported by substantial evidence
because there was “simply no evidence in the record that [the
claimant] suffered from any ‘additional vocational adversi-
ties’ that might justify placing her in the higher age category.”
Id. at 401.
IV. Conclusion
[6] The ALJ did not err when she did not explain in her
decision why she used Lockwood’s chronological age—54
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years old—instead of treating Lockwood as a person of
advanced age (i.e., a person age 55 or older).
AFFIRMED.
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