In Schofield v. Saul, No. 18-11390 (5th Cir. Feb. 22, 2020) (Elrod, Oldham, Graves), the Court announced an important rule for substantial evidence review and appears to have joined one side of a pretty deep circuit split in the process. The question was whether an ALJ's determination that Schofield could adjust to other work--and therefore was not disabled--was supported by substantial evidence. Schofield argued it was not because the ALJ didn't consider whether Schofield should be treated as a "person of advanced age" instead of as a "person closely approaching advanced age" under the Social Security Administration's "borderline situation" rule. The Fifth Circuit agreed.

Social security regulations divide claimants into three age categories: younger persons (those under 50), persons closely approaching advanced age (those 50-54), and persons of advanced age (those 55 or older). 20 C.F.R. § 404.1563(c)-(e). Where a claimant is within a few days or a few months of reaching an older age category--a "borderline situation”--an ALJ has discretion to use the older age category. Id. § 404.1563(b).

At the time relevant under the governing regulations, Schofield was about four months shy of 55 years old (and, thus, from qualifying as a person of advanced age) . The ALJ treated Schofield as a person closely approaching advanced age--instead of using the older age category--and concluded Schofield wasn't disabled. The ALJ didn't explain in her decision why she didn't treat Schofield as being a person of advanced age, but she did cite some of the relevant relevant regulations. The district court affirmed. Schofield appealed to the Fifth Circuit.

Although an ALJ is required by regulation to consider whether to use an older age category in a borderline situation, the regulations don't expressly require ALJs to explain in their written decisions why they didn't use an older age category. See 20 C.F.R. § 404.1563(b). Some courts have held an ALJ therefore need only cite the relevant regulation to show she considered the whether to use an older age category in a borderline situation. See Lockwood v. Comm'r of Social Security, 616 F.3d 1068, 1071 (9th Cir. 2010). Others have held more is required. E.g., Daniels v. Apfel, 154 F.3d 1129 (10th Cir.1998) (ALJ's was not supported by substantial evidence where ALJ failed to make factual findings regarding appropriate age category in borderline situation); Phillips v. Astrue, 671 F.3d 699, 706 (8th Cir. 2012) ("Simply noting Phillips's age ... her current age category[, and citing relevant regulations] fails to answer the precise question at hand—whether her borderline situation warranted moving her to the next category."); Kane v. Heckler, 776 F.2d 1130 (3d Cir. 1985) (same).

The Fifth Circuit joined those circuits that require more.  In explaining the reasons, Judge Oldham's opinion for the Court cites Chenery and Justice Gorsuch's dissenting opinion in Biestek v. Berryhill, 139 S. Ct. 1148, 1163 (2019) (Gorsuch, J., dissenting):

The Court went on to explain the ALJ's error was not harmless. The SSA itself conceded "a finding that Schofield deserved the benefit of an older age category would have led to a determination that she was disabled ...." While it was possible that the ALJ could have reached the same decision with an older age category, "'maybe' is not substantial evidence." That was particularly true in Schofield's case, the Court explained, because "the ALJ never explained why it chose the lower age category in the first place."

While that was enough to decide the case, the Court proceeded to emphasize what it was not deciding. First, it declined "to set out how much evidence would be necessary in future borderline situations" because the inquiry is "case-by-case." Second, it did not consider the decision of the Appeals Council, which had given "full consideration to Schofield's borderline age" and thus "arguably cured the defect in the ALJ's decision." At oral argument, however, "the SSA's counsel adamantly waived any reliance on the Appeals Council's decision," and the Fifth Circuit "holds parties--even administrative agencies--to their waivers." (citing Bd. of Miss. Levee Comm'rs v. EPA, 674 F.3d 409, 417 (5th Cir. 2012)). Finally, the Court did not decide what role, if any, certain informal agency guidance should play in this case:

Schofield v. Saul and the Borderline Situation ... Situation
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