Mitchell v. Dudek
U.S. Court of Appeals for the Fifth Circuit
Mitchell v. Dudek
Opinion
Case: 24-30342 Document: 48-1 Page: 1 Date Filed: 02/26/2025
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
February 26, 2025
No. 24-30342 Lyle W. Cayce
____________ Clerk
Kevin Mitchell,
Plaintiff—Appellant,
versus
Leland Dudek, Acting Commissioner of Social Security,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:23-CV-2493
______________________________
Before Smith, Clement, and Duncan, Circuit Judges.
Per Curiam: *
The Social Security Administration (SSA) awarded Appellant Kevin
Mitchell disability insurance benefits beginning at age 55. Claiming he was
entitled to benefits from an earlier date, Mitchell unsuccessfully challenged
his award in district court and now appeals. We affirm.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 24-30342
I.
Mitchell is a 35-year Air Force veteran deemed 100% disabled by the
Veterans’ Administration. In September 2021, he applied to the SSA for
benefits, alleging his disability began on December 31, 2020 when he was 54
years and seven months old. His application was initially denied by the SSA
in October 2022 and again, on reconsideration, in November 2022. See 42
U.S.C. § 405(b)(1).
In December 2022, Mitchell requested a hearing before an
administrative law judge (ALJ), which was held on April 4, 2023. The ALJ
issued Mitchell a partially favorable decision, finding him disabled and hence
eligible for benefits beginning on May 4, 2021, one day before his 55th
birthday. The ALJ declined, however, to find that Mitchell was eligible for
benefits dating from his alleged disability onset on December 31, 2020,
relying on an SSA regulation, 20 C.F.R. § 404.1563(b) (2008), as well as
subregulatory guidance issued by the Commissioner known as HALLEX
(which stands for the “Hearings, Appeals, and Litigation Law Manual”) and
POMS (which stands for “Program Operations Manual System”).
Mitchell appealed to the Appeals Council, which rejected his
challenge. On July 12, 2023, he filed this suit, alleging the ALJ’s decision was
contrary to law because the applicable HALLEX and POMS guidance
conflicts with § 404.1563(b). Effectively, Mitchell contended that the ALJ
should have awarded him benefits for the additional period between
December 31, 2020, and May 4, 2021. The district court, adopting the
magistrate judge’s findings and recommendations, rejected Mitchell’s
argument. He now appeals.
II.
“Our review of the Commissioner’s denial of SSI benefits is limited
to considering whether the decision is supported by substantial evidence in
2
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the record and whether the proper legal standards were applied.”
Higginbotham v. Barnhart, 405 F.3d 332, 335 (5th Cir. 2005).
III.
A.
The ALJ in this case followed the agency’s five-step process for
evaluating whether a claimant is disabled. See 20 C.F.R. § 404.1520(2008); see also Schofield v. Saul,950 F.3d 315
, 319–20 (5th Cir. 2020) (summarizing
the process). At issue here is step five, which considers whether Mitchell
could “make an adjustment to other work.” § 404.1520(a)(4)(v). If he could,
he would be deemed “not disabled”; if not, he would be deemed “disabled.”
Among other factors, the step-five inquiry considers a claimant’s age as
bearing on whether he can adjust to other work. Ibid.; see also § 404.1520(g)
(describing the analysis).
“Special rules” apply to claimants of “advanced age,” by which is
meant “age 55 or older.” § 404.1563(e); see also § 404.1568(d)(4). 1 But the
regulations caution that “[w]e will not apply the age categories mechanically
in a borderline situation,” § 404.1563(b), providing the following illustration:
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.
Ibid. 2
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1
The regulations also specify two other age categories—a “younger person”
(under 50) and a “person closely approaching advanced age” (50–54). § 404.1563(c)–(d).
2
We have before noted that this regulation does not specify the time period for a
“borderline situation” beyond “a few days to a few months of [reaching] an older age
category.” Schofield, 950 F.3d at 320 (cleaned up). We need not address that ambiguity
3
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Two forms of regulatory guidance clarify when a “borderline
situation” arises under § 404.1563(b). First, the HALLEX provides:
ALJs will assess whether the claimant reaches or will reach the
next higher age category within a few days to a few months after
the: Date of adjudication; Date last insured; End of disabled
widow(er)’s benefit prescribed period; End of child disability
re-entitlement period; or Date of cessation of disability.
HALLEX I-2-2-42 (B)(1) (S.S.A.), 2016 WL 1167001 (Mar. 25, 2016). The
POMS restates that guidance and provides this further clarification:
If using the claimant’s chronological age results in a partially or
fully favorable determination, only consider the claimant’s
chronological age. This is not a borderline age situation.
POMS DI 25015.006 (A), Borderline Age, https://perma.cc/TYY8-6M5V
(effective starting July 6, 2017).
B.
Mitchell principally argues that the ALJ erred by finding he was not
in a “borderline situation” under § 404.1563(b), which could have resulted
in his benefits starting four months earlier on the date of his alleged disability
onset (that is, when he was 54 and seven months old). Mitchell further argues
that the subregulatory guidance on which the ALJ relied (the HALLEX and
POMS provisions noted above) conflicts with the regulation. Finally,
Mitchell argues his case is controlled by our decision in Schofield. We disagree
on all counts.
To begin with, the ALJ properly applied § 404.1563(b) and the
guidance (which, as we explain below, does not conflict with the regulation).
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here because, as explained infra, the ALJ properly determined that Mitchell’s case did not
present a “borderline situation” to begin with.
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Under the regulation, a “borderline situation” arises when two criteria are
met: (1) the claimant is “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 [the claimant] [is] disabled.” Id. The
HALLEX, in turn, clarifies at what point in time one must be approaching an
older age category. As relevant here, a claimant must be “a few days to a few
months of reaching an older age category” on his “date of adjudication” or
his “date last insured.” HALLEX I-2-2-42 (A) & (B)(1). 3
Under that framework, the ALJ correctly concluded that Mitchell did
not present a “borderline situation.” To qualify as such, Mitchell would have
needed to be approaching 55 either on the date of adjudication or on his last
date insured. He was not. On the date of his adjudication in April 2023,
Mitchell had already turned 56. And Mitchell’s date last insured will not
occur until December 31, 2026.
Perhaps realizing this problem, Mitchell contends the guidance
conflicts with the regulation. Not so. The HALLEX sensibly clarifies a point
in time on which the regulation is silent. The dates specified (here, the date
of adjudication and date last insured) are ones which could determine
whether a claimant receives something or nothing depending on age. That is,
if a claimant whose benefits would begin at age 55 is not quite 55 on either of
those dates, he would receive zero benefits. In other words, the guidance
fleshes out what the regulation means by a “borderline situation.” That is
quite different from Mitchell’s situation, where he is in fact entitled to some
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3
One’s “date last insured” refers to the last day one qualifies for Social Security
benefits and is generally about five years from the last time the person worked. See 20 CFR
§ 404.101(a); see also, e.g., Dugue v. Soc. Sec. Admin., No. CV 14-2723,2016 WL 1171637
, at *4 (E.D. La. Feb. 10, 2016), report and recommendation adopted, No. CV 14-2723,2016 WL 1215240
(E.D. La. Mar. 24, 2016) (explaining the meaning of “date last insured”).
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benefits by virtue of his age. This reading of the regulation is confirmed by
POMS, which explains that claimants whose “chronological age results in a
partially or fully favorable determination” are “not a borderline age
situation.” POMS DI 25015.006 (A).
By contrast, Mitchell’s reading of the regulation would lead to absurd
results. He proposes that ALJs should consider whether a claimant was
approaching the next age category on his date of alleged onset of disability.
By that logic, however, every claimant who becomes eligible to receive
benefits upon reaching a certain age would be entitled to use the
“borderline” exception to try to squeeze out a few extra months of benefits.
That exception would illogically swallow the rule that “‘[a]ge’ means your
chronological age.” 20 C.F.R. § 404.1563(a) (2008). That cannot be right. 4
Finally, Mitchell argues that this case is controlled by our decision in
Schofield, 950 F.3d 315. Not so. Unlike this case, Schofield actually presented
a “borderline situation” under § 404.1563(b). The claimant’s “date last
insured” fell just a few months before her 55th birthday, and the ALJ denied
her benefits based on her age alone. Id. at 319. We held that the ALJ erred by
not “consider[ing] whether to use the older age category.” Id. at 320
(emphasis omitted) (quoting § 404.1563(b)); see also id. at 321 (holding an
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4
Our interpretation is consistent with “[t]hose few courts that have considered
this precise issue” and “have held that the borderline age analysis does not permit a
claimant like [Mitchell], who has received benefits under the Medical Vocational
Guidelines, to rely upon the borderline rule to secure a more favorable onset date and
expand the number of months for which [ ]he can receive retroactive benefits.” Berg v.
Berryhill, No. CV 17-04452, 2019 WL 3387209, at *5 (E.D. Pa. July 26, 2019) (cleaned up). See also, e.g., Williams v. Comm’r of Soc. Sec. Admin., No. CIV A 07-3234(SRC),2008 WL 5075549
, at *11 (D.N.J. Nov. 25, 2008) (holding the same); Antal v. Berryhill, No. 3:17-CV- 2097,2018 WL 4038147
, at *5 (M.D. Pa. July 26, 2018), report and recommendation adopted, No. CV 3:17-2097,2018 WL 4030694
(M.D. Pa. Aug. 23, 2018) (holding the same).
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ALJ must “provide some indication” that he engaged in the required
analysis in a borderline case).
Unlike Schofield, Mitchell does not present a borderline situation
under the regulation. So, contrary to Mitchell’s argument, there was no
reason for the ALJ to consider whether the older age category should apply
before Mitchell turned 55. 5
IV
The district court’s judgment is AFFIRMED.
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5
Mitchell argues in passing that the subregulatory guidance is “unconstitutional”
because it conflicts with § 404.1563(b). Yet he never develops this constitutional argument
beyond reiterating his mistaken contention that the guidance “conflicts” with the
regulation. So, we have no occasion to address the guidance’s constitutionality.
7
Reference
- Status
- Unpublished