Where a woman argued she should have been treated as a 50-year-old by the administrative judge, because she was six months and 17 days away from her 50th birthday, her argument was rejected. Although regulations allow an applicant to be bumped up where they are “within a few days to a few months” of eligibility for a higher age category, she wasn’t within a “few” months of the next age category.
Background
When the Social Security Administration adjudicates an application for disability benefits, it places the applicant into one of three age categories and considers age to be an “increasingly limiting factor” in the applicant’s ability to work. But when an applicant is “within a few days to a few months” of eligibility for a higher age category, the agency may consider whether to treat the applicant as though she’s in the higher category.
Donna Ard appeals the magistrate judge’s order affirming the agency’s denial of her application for disability benefits. She contends that remand is necessary because the administrative law judge didn’t consider whether to treat her as a 50-year-old given that she was six months and 17 days away from her 50th birthday.
Analysis
A regulation provides that, when an applicant is “within a few days to a few months” of eligibility for a higher age category, the agency may consider whether to treat the applicant as though she’s in the higher category. This court’s task then is to decide whether six months and seventeen days is “within a few days to a few months” of Ard’s next birthday.
Dictionaries confirm that “few” means a “small number.” Yet, just what comprises a “small number” depends on context. Ard seeks to provide that context by reference to the 60-month period making up the next age category — ages 50 to 54. According to Ard, because six-and-a-half months is “a few” out of 60 months, she satisfies the first condition of the borderline age rule. Indeed, Ard’s view is that this condition is satisfied whenever the applicant is within a year of the next age category.
Had the Commissioner intended a one-year limit, he “easily could have drafted language to that effect” by providing that the rule applies when the applicant is “less than one year” from the next age category. That the Commissioner instead used the phrase “within a few days to a few months” implies a shorter period.
Still, in a regulation about age, one year serves as a useful baseline for measuring “a few months.” That’s because most “ordinary speaker[s] of English” measure periods greater than a year in terms of years and not months. Thus, this court’s inquiry becomes whether six and a half (roughly the number of months that Ard was shy of her fiftieth birthday) is a “few” or a “small number” out of twelve. The court thinks not.
Social Security Administration policy guides support this commonsense understanding. The takeaway from both guides is that six months marks an outer limit for invoking the borderline age rule. Unsurprisingly, most district courts have coalesced around a six-month outer limit for invoking the rule. Most circuits have also shied away from applying the rule beyond six months.
Nonetheless, Ard contends that a six-month cut-off flouts the individual assessment required by the Social Security Act and the flexibility inherent in the borderline age rule. The court disagrees. And while the Commissioner concedes that an administrative law judge may apply the rule beyond six months, the Commissioner offers no basis for, or analysis of, this concession, and the court isn’t bound by it.
Finally, while some courts have applied the rule when an applicant was close to, but just beyond, six months from reaching the next category, none of these cases persuasively analyze the meaning of “a few months.” And they leave administrative law judges with no guidance about when to consider the borderline age rule for those applicants more than six months away from the next category. In sum, the court agrees with the district court that the administrative law judge wasn’t required to consider the borderline age rule because Ard wasn’t within a “few months” of the next age category.
Affirmed.
Ard v. O’Malley, case no. 21-2422, Aug. 1, 2024. 4th Cir. (Diaz), from DSC at Anderson (Austin). Audrey Payne and David Ahnen for Appellant. David E. Somers III for Appellee. 16 pp.