Jennifer Cronenberg, Senior Counsel and Director of Legal Information

On March 3, 2025, the Fifth Circuit Court of Appeals published their decision in Mitchell v. Dudek, finding that the claimant, who was 5 months shy of his 55th birthday at his onset date, did not qualify for the agency’s “borderline age” rules.

20 C.F.R. §404.1563 articulates the agency’s “borderline age” policy:

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.

POMS DI 25015.006 clarifies this definition, offering:

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.

And finally, HALLEX I-2-2-42 notes the following “borderline age” guidance:

SSA will not apply the age categories mechanically in a borderline age situation. If a claimant is within a few days to a few months of reaching an older age category (hereinafter “higher age category”) and using the higher age category would result in a determination of decision that the claimant is disabled, SSA will consider whether to use the higher age category after evaluating the overall impact of all the factors of the case.

Based on these definitions, it stands to reason that if a person, at their onset date, would be found disabled were they just a few days or months older, then the “borderline age” rules should apply, and a finding of “disabled,” dating back to their onset date would be appropriate. This was the claimant’s contention in the Mitchell case.

However, both the POMS and the HALLEX offer crucial “notes” that the Court of Appeals in Mitchell latched onto as persuasive.

The above-cited POMS notes:

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.

Similarly, the above cited HALLEX states:

If using the claimant’s chronological age will result in a favorable decision, an administrative law judge (ALJ) will not use the higher age category solely because it will result in a more favorable onset date, determination, or decision for the claimant. (emphasis added)

Using this additional framework, the Court found that “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.”

While the timing in this case is not a perfect example (and I personally would rarely, if ever, encourage a claimant to appeal their entire case over 5 months of benefits (especially if ongoing benefits are at play)), I do think there is an interesting question of agency-delay that’s being ignored in the Court’s interpretation of the borderline age policy. Let’s take the facts here where the claimant was 5 months shy of his 55th birthday at his onset date. For the sake of this argument, let’s say that the claim was processed with miraculous speed and the claimant was denied at the initial claim level still 2 months shy of his 55th birthday. Had the IC examiner awarded the claim, she certainly could have used the borderline age criteria as it was “necessary” for the 55-grid-award at the time of the decision. But the IC examiner got the decision wrong. We know this, because ultimately the ALJ did award the case at the claimant’s 55th birthday. But, based on the Court’s logic, because the claimant was already 56 by the time the case got to the ALJ, the ALJ can no longer apply the borderline age rules even though they would have applied had the original decision been made correctly. I don’t love that.

In Mitchell the Court notes that “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.” I’m not sure the Court and I agree about what constitutes “absurd results.”

Mitchell also claimed that the sub-regulatory guidance, defining the timing of the borderline age criteria as being linked to the decision or DLI date alone (and not the onset date), conflicts with the definition of “borderline age” in the regulation. The Court also decided that this is decidedly not so. They found instead that “the HALLEX sensibly clarifies a point in time on which the regulation is silent.” Sub-regulatory guidance is an interesting beast. It can be easily created and eliminated by the agency. When circuit courts build case law based entirely on sub-regulatory language, the lasting impacts of this agency-only language can be felt long after the agency changes its mind about how to interpret the regulations.