Borderline Age
The “borderline age” concept is important for attorneys and representatives because its use can result in an earlier allowance. In cases that result in a favorable decision partially due to this concept, your claimants are awarded benefits earlier, and don’t have to appeal.
Age criteria in the rules are factors of entitlement, which must be met for a claimant to be found disabled. The borderline age provision merely provides for judgment—based on the facts of each individual case—that the required age factor is effectively met a few days or a few months before the claimant has actually attained the higher age.
When can the concept of “borderline age” be applied?
Anytime that deeming an individual to a higher age category is material to the determination for issues involving onset, duration, special vocational profiles, or transferable skills.
Why does SSA allow the ability to use a higher age than a claimant’s chronological age in determining benefits?
Recognizing the progressive nature of the aging process and the need for individualized adjudication, regulations and POMS provide that the age criteria set out in the medical-vocational rules will not be applied mechanically in borderline situations.
Answering two questions will identify borderline are situations:
- Is the claimant’s age within a few days or a few months of a higher age category?
- If so, would using the higher age category result in a decision of disabled instead of not disabled?
If either or both are answered “no,” a borderline age situation either does not exist or would not affect the outcome of the case; then the claimant’s chronological age is used in adjudication.
If a borderline age situation does exist (the answer to both is “yes”), then the examiner must decide whether it is more appropriate to use the higher age or the claimant’s chronological age. But the higher age category is not automatically applied merely because a borderline age situation exists.
Considering the time period – “a few days or a few months”
Regulations and the POMS describe the difference between the claimant’s chronological age and the next higher age category as a matter of a few days or a few months.
Some have suggested that a definitive time criteria for borderline age needs to be established, such as 3 months or 6 months from the next higher age criterion. But to do so would effectively:
- establish additional age criteria which are not in the regulation
- negate the age criteria which are in the regulations and
- cause the borderline age provision itself to be mechanical.
A 1988 decision by a United States Circuit Court of Appeals stated that “he (the claimant) is more than a year away from the upper cap of his age category. This is not a borderline situation.”
Policy guidance over the years has noted that finding a borderline age situation as much as one year before the next higher age category is difficult to justify and, therefore, will be rare. The operative guide remains as “a few days or a few months.”
Justifying application of borderline age
Once a borderline age situation exists, the adjudicator must consider whether the facts of the particular case at hand support the use of the higher age. If they don’t, the claimant’s chronological age is used in adjudication.
The shorter the period between the claimant’s actual age and the next higher age category, the less justification is needed. Conversely, the longer the period between the actual age and attainment of the next higher age category, progressively more additional adversity is required to support a judgment to use the higher age. Thus, borderline age situations are considered on a “sliding scale.”
Medical-vocational rules consider the factors of entitlement to disability benefits in terms of relative adversities of a claimant’s functional capability, age, education and work experience (including skill level).
Additional vocational adversities, beyond those already considered in the rules, are required to support the application of borderline age.
Examples of additional vocational adversity
- Special education
- Low level formal education or limited literacy
- Work experience in isolated industry (fishing or forestry)
- Work experience in unskilled jobs
- Presence of additional impairments, which infringe upon—without substantially narrowing—a claimant’s remaining occupational base, such as nonexertional impairments and dominant hand impairments
If there are no additional adversities, the claimant’s chronological age is used in adjudication. The adversities of chronological age are already considered in the medical-vocational rules and must not be “double weighted” by considering the same factor twice in adjudication.
Considering the affect on onset
When a borderline age situation exists and the higher age category is used, the age factor of entitlement to disability benefits is met at the point the claimant effectively meets the higher age.
If alleged onset is prior to the time the age factor is effectively met, the factors of entitlement are not effectively met prior to that time. In short, the borderline age decision cannot be retroactive to some earlier period.
Rationalizing a borderline age decision
When a higher age than a claimant’s chronological age is used in adjudication, POMS DI 265.15.015C.2 says an explanation is required. A convincing rationale is needed as to why the higher age was used rather than the chronological age. If the claimant’s age is very close to the higher age category (e.g., within a few days), very little rationale is required. If it is more than just a few days, the application of the sliding scale must be adequately justified in the rationale.
Conclusion
It is Central Office’s perspective that the concept of “borderline age” can be applied anytime that deeming an individual to be a higher age is material to the determination. Borderline age may apply when considering onset, duration, the special medical-vocational profile, or when applying the vocational grids.
Always assess your claimant’s case for a borderline age situation, and if one exists, point it out to their examiner. Based on my experience, examiners will attempt to justify the application of borderline age when the next higher age category is 6 months or less away.
References
DI 25015.005A.3, DI 26515.015C.2, HALLEX II-5-3-2.