Effective Dates: 6/22/2024 - Present

Identification Number:
DI 25015 TN 29
Intended Audience:
Originating Office:ORDP ODP
Title:Ability to Perform Other Work
Type:POMS Full Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM

Part DI – Disability Insurance

Chapter 250 – Medical-Vocational Evaluation

Subchapter 15 – Ability to Perform Other Work

Transmittal No. 29, 06/21/2024

Originating Component

ODP

Effective Date

06/22/2024

Background

The Office of Disability Policy (ODP) is revising this POMS section in light of publication of Past Relevant Work Final Rule.

Summary of Changes

DI 25015.006 Borderline Age

We updated this POMS section to:

  • •

    Remove "special" from medical-vocational profiles and the title of DI 25010.001,

  • •

    Update language to use gender neutral pronouns,

  • •

    Change the relevant work period from 15 to 5 years,

  • •

    Add a cross-reference to DI 25015.010,

  • •

    Remove work performed during the beginning of the relevant work period as an additional adversity consideration for borderline age,

  • •

    Remove instructions related to processing cases outside of the Disability Case Processing System (DCPS), and

  • •

    Make other non-substantive changes for clarity and usability.

DI 25015.006 Borderline Age

CITATIONS:

20 CFR 404.1563 and 416.963, and Part 404, Subpart P, Appendix 2

A. Borderline age policy

If a claimant is within a few days to a few months of reaching a higher age category and using their chronological age results in a denial, then, after you evaluate all factors (i.e., residual functional capacity (RFC), age, education, and work experience) in the claim, consider using the higher age category if it results in a favorable determination.

IMPORTANT: 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.

B. What we mean by “within a few days to a few months”

We do not have a more precise programmatic definition for the phrase “within a few days to a few months.” We define the term “a few” using its ordinary meaning, a small number. Consider a few days to a few months to mean a period not to exceed six months.

C. Identifying a borderline age situation

When you evaluate a claimant’s ability to adjust to other work, a borderline age situation exists if:

  1. 1. 

    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 the Title II insured status expired (date last insured);

    • •

      End of the disabled widow(er)’s benefit (DWB) prescribed period;

    • •

      End of the childhood disability benefit (CDB) reentitlement period; or

    • •

      Cessation of disability; and

  2. 2. 

    Both of the following are true:

    • •

      Using the claimant’s chronological age results in a “not disabled” determination; and

    • •

      Using the next higher age category to adjudicate the borderline period results in a “disabled” determination.

IMPORTANT: If you cannot establish all of these requirements, you do not have a borderline age situation. Use the claimant’s chronological age to adjudicate the claim.

Consider borderline age in all situations where age is a factor in the determination of disability, such as:

  • •

    Prior to expediting step 5 of the vocational assessment;

  • •

    When doing a transferability of skills assessment; or

  • •

    When considering use of the “no work” or “lifetime commitment” medical-vocational profiles (see DI 25010.001).

D. Examples to identify a borderline age situation

EXAMPLE 1:

The claimant filed a concurrent claim for Title II and Title XVI benefits. The claimant was 50 years old when they applied, but was two months shy of age 50 when their Title II insured status expired. They have an eighth grade education and can no longer do their unskilled past relevant work (PRW). The claimant is limited to sedentary work and medical-vocational rule 201.09 directs a finding of “disabled” at age 50.

The Title II claim presents a borderline age situation. Considering age mechanically, using the claimant’s chronological age on the date their insured status expired under medical-vocational rule 201.18, results in a denial. The claimant attained an age that changes the outcome of the decision to an allowance (medical-vocational rule 201.09) within a few days to a few months after their insured status expired. Although, the Title XVI claim is already an allowance and therefore does not present a borderline age issue, enter the Title II established onset date (EOD) for the Title XVI claim, per DI 25501.370A.2.

NOTE: For the majority of concurrent claims, follow existing policy regarding establishing onset in concurrent claims and enter the Title II EOD for the Title XVI claim. For an exception to this rule, see details in the third bullet of DI 25501.370A.2.

EXAMPLE 2:

The claimant is age 51 at adjudication. The claimant has semi-skilled PRW at the medium level of exertion, with no transferable skills, and their RFC limits them to no more than sedentary work. The claimant has a 12th grade education with no direct entry (i.e., they have not recently completed education or training that provides for direct entry into skilled or semiskilled work). Medical-vocational rule 201.14 directs a finding of “disabled” as of age 50. The representative asks to apply the medical-vocational rules non-mechanically and find the claimant disabled six months prior to age 50.

This is not a borderline age situation because the claim would not be denied if the adjudicator applies the age categories mechanically.

E. Decide which age category to use in a borderline age situation

IMPORTANT: In a borderline age situation, do not automatically use the higher age category.

Consider the criteria for the medical-vocational rules for the claimant’s chronological age and the next higher age category. Reexamine the overall impact of all the factors in the case on the claimant’s ability to adjust to other work. Begin by analyzing the factors in the case.

1. Analyze the factors in the case

a. Period to consider for borderline age

Look at the period under review. For example, there may be “a few days to a few months” between the date of adjudication and the date the claimant attains age 55. For our definition of “a few days to a few months,” see DI 25015.006B, in this section.

NOTE: The closer the claimant is to the next higher age category (older), the more disadvantageous the claimant's age.

b. Consider education for borderline age

Education below the high school level may be vocationally disadvantageous.

Use the table in this subsection when considering how the claimant’s education relates to the range of education criteria for the higher age category rule:

If the education category is:

Relative vocational benefit ranges

​

From lowest educational attainment within the range

(most adverse)

To highest educational attainment within the range

(not adverse)

Limited or less but literate

No formal education but literate

11th grade

Limited or less

Illiterate, regardless of formal educational attainment

11th grade

Marginal or less

Illiterate, regardless of formal educational attainment

Sixth grade

Be careful not to double weigh education.

Example of double weighing:

Using the education factor to support an allowance if the claimant is “illiterate,” the chronological age medical-vocational rule(s) requires the education category “illiterate,” and the case presents a borderline age situation. This situation only occurs when the chronological age medical-vocational rule is 202.16 or 201.23.

IMPORTANT: Do not reconsider issues such as special education, home schooling, and possession of a General Educational Development (GED) certificate as support for use of the higher age category in a borderline age situation, because, before determining which medical-vocational rule(s) applies, we consider the issue of whether the claimant’s actual education level is consistent with their reported years of education. For more information on education as a vocational factor, see DI 25015.010.

Examples of when education may support using the higher age category:

EXAMPLE 1:

We find a claimant who is 54 years, nine months of age on the date of adjudication (or on the date their insured status expired), with a light RFC, unskilled medium work experience, and a fifth-grade education disabled, under medical-vocational rule 202.01. The rule requires advanced age and limited or less education (11th grade or less). The adjudicator considers the claimant's education to be more vocationally adverse because the claimant has an education at the lower end of the rule continuum.

EXAMPLE 2:

Based on their chronological age, a claimant who is illiterate, has a sedentary RFC, and is 44 years and 9 months old on the date of adjudication is not disabled under medical-vocational rule 201.23. The applicable rule for the higher age category, rule 201.17, directs a finding of disabled, but that rule already considers illiteracy. In this situation, there must be a factor(s) other than illiteracy to justify use of the higher age category.

c. Consider past relevant work (PRW) for borderline age

Consider how the claimant’s PRW relates to the past work experience requirements of the chronological age rule and the higher age rule.

When considering PRW for borderline age, consider:

  • •

    If the PRW category for both rules is “unskilled or none,” consider the factor more vocationally adverse if the claimant had no work history or a minimal unskilled work history than if the claimant had a long continuous history of unskilled work.

  • •

    If the claimant’s only PRW was in an isolated industry, such as forestry, fishing, or mining, that factor is more vocationally adverse than it would be if the PRW involved work that exists in many areas or that uses common processes.

EXAMPLE of isolated industry:

A claimant aged 54 years and 11 months with a 10th grade education, a light RFC, and medium, skilled PRW with no transferable skills, would meet medical-vocational rule 202.02 at attainment of age 55. The claimant’s PRW was as a salmon fisherman, which is considered work in an isolated industry. Consider this work more vocationally adverse than work that exists in many areas or that uses common processes.

d. Consider residual functional capacity (RFC) for borderline age

If the claimant’s RFC limitations adversely affect their (unskilled) occupational base, but do not substantially erode it, consider the RFC limitations in the borderline age analysis. Our Social Security Rulings (SSR) provide authoritative information about the impact of certain RFC limitations on the unskilled occupational base. For a summary of RFC considerations that may be relevant to borderline age analysis, see Citing a Social Security Ruling (SSR) at Step 5.

If the occupational base erosion is substantial, be careful to select the correct medical-vocational rule. Do not use the RFC to support the borderline age analysis when the occupational base erosion is substantial, because doing so is double weighing.

EXAMPLE of double weighing:

A claimant is 54 years, seven months of age. The claimant has a 12th grade education, with no transferable skills, and is no longer able to do their PRW. They have a medium RFC with a nonexertional limitation to occasional crouching. In this case, we find that the limitation to only occasional crouching significantly erodes the occupational base of medium work, so we use a light rule as a framework for the determination. Medical-vocational rule 202.14 (closely approaching advanced age) results in a finding of “not disabled,” while medical-vocational rule 202.06 (advanced age) results in a finding of “disabled.” The claimant is within a few days to a few months of attaining a higher age category; therefore, consider whether to use the claimant’s chronological age or the next higher age category. Do not use the RFC limitation to only occasional crouching to support use of the higher age category because we considered the effect of that limitation on the medium occupational base when we determined that a light rule applied as a framework for our determination. Using the RFC limitation to only occasional crouching in this example to support use of a higher age category is double weighing.

EXAMPLE without double weighing:

A claimant is 54 years, 11 months of age. They have a 12th grade education with unskilled PRW and no direct entry into skilled or semiskilled work. The claimant cannot perform their PRW. They have a light RFC with restricted overhead reaching. Medical-vocational rule 202.13 (closely approaching advanced age) directs a denial, while medical-vocational rule 202.04 (advanced age) directs an allowance. The claimant is within a few days to a few months of attaining a higher age category; therefore, consider whether to use the claimant’s chronological age or the next higher age category. In this case, the additional limitation in overhead reaching does not significantly erode the light occupational base. The overhead reaching limitation affects the light occupational base, but it does not erode the light base so much that a sedentary rule applies as a framework. Using this RFC limitation to support an allowance under the borderline age criteria does not constitute double weighing.

Next, look at the impact of the factors.

2. Determine whether the overall impact of the factors justifies using the higher age category to find the claimant “disabled”

Consider the period for borderline age in conjunction with the claimant’s RFC, age, education, and work experience, as explained in 20 CFR 404, Subpart P, Appendix 2 (Medical-Vocational Guidelines).

Take a “sliding scale” approach. To support use of the higher age category, the factors of the case must show a progressively greater adverse impact on the claimant’s ability to adjust to other work as the period between the claimant's actual age and their attainment of the next higher age category lengthens.

If the factors in the case:

  • •

    Support using the next higher age category, find the claimant disabled. For established onset date (EOD) instructions in borderline age allowance determinations and decisions, see DI 25501.410.

  • •

    Do not support using the higher age category, use the age category corresponding to the claimant’s chronological age and find the claimant not disabled.

Do not allow a claim using the medical-vocational profiles or medical-vocational guidelines unless you first make a finding of fact at step 4 of the sequential evaluation process.

For details on expedited vocational assessment at steps 4 and 5 of the sequential evaluation process, see DI 25005.005.

IMPORTANT: Do not double weigh any factors in the case. You must consider and evaluate the overall impact of all the factors in the case.

F. Examples of factors that may impact the case

This subsection provides examples of case factor combinations that could support use of the higher age category in a borderline age situation.

EXAMPLE 1:

The claimant was 54 years, 10 months old on the date their Title II insured status expired (or the date of adjudication. or the date the DWB prescribed period or CDB reentitlement period ended). The claimant has a light RFC, an eighth-grade education, and no transferable skills from their semiskilled PRW. Medical-vocational rule 202.11 directs a denial, while medical-vocational rule 202.02 directs an allowance.

EXAMPLE 2:

The claimant is 49 years, 11 months old, and has a sedentary RFC, a fifth-grade education, and unskilled PRW. Medical-vocational rule 201.18 directs a denial, while medical-vocational rule 201.09 directs an allowance.

EXAMPLE 3:

The claimant is 54 years, six months old, and has a medium RFC, a fourth-grade education, and no PRW. Medical-vocational rule 203.18 directs a denial, while medical-vocational rule 203.10 directs an allowance.

G. Document consideration of borderline age

Document how you considered borderline age regardless of whether you allow or deny the claim:

  • •

    Explain your decision to use the next higher age category or your decision to use the claimant’s chronological age, including the case-specific supporting factors.

  • •

    In the Disability Case Processing System (DCPS), document consideration of borderline age in the Vocational Assessment page of the Claims Analysis section.


DI 25015 TN 29 - Ability to Perform Other Work - 6/22/2024