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Borderline Age POMS Amended

March 28, 2016

The Social Security Administration (SSA) has announced new POMS regarding the application of the Medical-Vocational Guidelines (the “grid”) in cases where the claimant is within six months of a new age category. See DI 25015 TN 06, available at https://secure.ssa.gov/apps10/reference.nsf/links/02012016034439PM.

The revisions, which become effective March 26, 2016, govern those borderline situations where the grid should not be “mechanically applied” if an unfavorable decision would result.  SSA claims its “new borderline age policy instructions are more concise and should lead to greater consistency throughout the agency when adjudicating claims involving borderline age situations.”

The instructions on Borderline Age currently contained in POMS DI 25015.005 (Age as a Vocational Factor) have been revised and moved to a new section, DI 25016.006 (Borderline Age).  The new POMS will no longer permit adjudicators to consider an earlier onset date for claims that are partially favorable allowances under the medical-vocational guidelines.  Nor will adjudicators be able to establish a more advantageous established onset date (EOD) in borderline age claims; they will be limited to the latest possible EOD that still results in an allowance. In other words, borderline age can be invoked only if the claimant would otherwise be denied.

A borderline age situation exists if the claimant reached or will reach the next higher age category within a few days to a few months after the date of adjudication, date last insured (DLI), end of disabled widow(er)’s (DWB) prescribed period, end of childhood disability benefit (CDB) reentitlement period , or cessation of disability; AND using the claimant’s chronological age would result in a “not disabled” determination while using the next higher age category would result in a “disabled” determination.  The meaning of “a few days to a few months” has been clarified as a period usually not to exceed six months.

According to the revised POMS, SSA will no longer consider additional vocational adversities in borderline age determinations.  It will, however, continue to require an evaluation of all the factors – not just age – before deciding to use a higher age category.  The factors include age, education, past work experience and residual functional capacity (RFC).

Adjudicators are admonished not to “double weigh” any factors that were already taken into account.  For example, illiteracy or unable to communicate in English is already considered under the Medical-Vocational Rules.  A claimant with a sedentary RFC who is illiterate and is 44 years and nine months old, who would not be found disabled under Rule 201.23 cannot be found disabled under the more favorable Rule 201.17.  There must be a factor other than illiteracy to justify a “non-mechanical application” of the rules.  The new POMS provides other examples of educational factors that may impact cases identified as borderline age.

Similarly, if in determining RFC, the adjudicator has found a substantial erosion of the occupational base, RFC limitations will not justify a borderline age  analysis.  For example, if a claimant who is 49 years and seven months of age has been given a light RFC because his four-hour limitation in standing/walking significantly erodes the occupational base of light work, those same limitations cannot be used to justify application of the borderline age provisions.  The POMS identify that situation as double weighing.  But a 54 years, 11 month old claimant limited to light work with restricted overhead reaching may be able to take advantage of the next age category.  Since the overhead reaching limitation does not significantly erode the light occupational base, it can be used as a factor to justify an allowance under the next age category.

SSA plans to publish new borderline age instructions in the Hearings, Appeals, and Litigation Law (HALLEX) manual (I-2-2-42 for the hearing level and I-3-3-25 for the Appeals Council level). HALLEX II-5-3-2, containing the old borderline age instructions, will be removed.

 





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