Hilliard v. Schweiker

Can Social Security Deny Disability Because You Are a Few Months Short of 55? Hilliard v. Schweiker, 563 F. Supp. 99 (D. Mont. 1983)

Boland Aarab PLLP

Not automatically. In Hilliard v. Schweiker, 563 F. Supp. 99 (D. Mont. 1983), the federal court in Great Falls held that an administrative law judge may not apply Social Security’s age categories “mechanically” to a claimant who is only months away from the next age bracket. Because the judge had not explained why a 54-year-old pipefitter, less than three months from turning 55, was treated as the younger category, the court sent the case back for a new decision.

Key Takeaways

• Social Security’s own regulation says the agency “will not apply these age categories mechanically in a borderline situation” (Hilliard, 563 F. Supp. at 101, quoting 20 C.F.R. § 404.1563(a)).
• The age category mattered. As a person “closely approaching advanced age,” Mr. Hilliard fell under a rule directing “not disabled.” At “advanced age” (55 or over), the rule directed “disabled” (at 101).
• An ALJ who does not explain why the age category was applied mechanically gives “sufficient ground for remand” (at 101).
• Once a claimant shows he cannot return to his past work, the burden shifts to the government to show other work he can do (at 100).

In this case sheet: At a glance · What the court held · What it meant · Laws · When it applies · How hard · FAQ

The practice Tom Boland built is the practice that handles your case today. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the court hold in Hilliard v. Schweiker?

Raymond Hilliard worked as a pipefitter until a fall at work on November 14, 1978 injured his back. He had severe back pain, headaches and related depression (at 100). He applied for disability benefits in 1979 and was denied. After a July 7, 1981 hearing, an ALJ found him not disabled (at 99–100).

The ALJ found that Mr. Hilliard could not return to pipefitting but could do “light” work. The ALJ classified him as “closely approaching advanced age,” with a “limited” education, and applied grid Rule 202.11, which directs a finding of “not disabled” (at 100).

Judge Hatfield focused on the age category. Mr. Hilliard was born December 14, 1926. He was 54 at the hearing, and the ALJ ruled on September 23, 1981, “less than three months” before his 55th birthday (at 101). Had he been treated as “advanced age,” Rule 202.02 would have directed a finding of disabled (at 101). The record was “devoid” of any consideration of that borderline situation, which was “sufficient ground for remand” (at 101).

The court added that Mr. Hilliard’s insured status ran until at least December 1983, so there was no reason to lock in the younger category (at 101–02). It warned that affirming would force him through “another administrative and judicial gauntlet” after a four-year fight (at 102). The court remanded for a hearing on whether his work skills were transferable, and for a new decision under the correct grid rule as of December 1981 (at 102).

What did Hilliard mean for the law?

Hilliard is a short trial-court opinion, but it became a reference point on “borderline age.” Courts deciding how close is close enough have listed it as an example. The Tenth Circuit, for instance, cited Hilliard (“less than three months within borderline”) in Daniels v. Apfel, 154 F.3d 1129 (10th Cir. 1998), when it held that a claimant 65 days short of the next category was in a borderline situation.

The rule itself is still in the regulations, now at 20 C.F.R. § 404.1563(b). It tells the agency to consider using the older category when a claimant is “within a few days to a few months” of it and that would change the outcome.

Which laws and rules apply?

• 42 U.S.C. § 405(g): federal-court review of Social Security decisions
• 42 U.S.C. § 423: disability insurance benefits and the definition of disability
• 20 C.F.R. § 404.1563: age as a vocational factor. The borderline-age sentence the court quoted from subsection (a) now appears in subsection (b).
• 20 C.F.R. Part 404, Subpart P, Appendix 2: the medical-vocational guidelines (“grids”), including Rules 202.02 and 202.11

When might Hilliard apply to you?

• A work injury ends a physical career in your 50s. A tradesperson who cannot go back to heavy work may have a claim that turns on age, education and transferable skills.
• Your birthday is close to an age line. If a denial came weeks or a few months before you turned 50, 55 or 60, ask whether the judge considered the older category.
• The decision says nothing about it. Hilliard faulted the silence itself: no stated reason for the mechanical choice (at 101).

How hard is it to win a Social Security disability appeal in federal court?

It is difficult. The court reviews only whether the agency’s findings are “supported by substantial record evidence,” and supported findings are “conclusive” (at 101 n.1). A claimant bears the burden of proving disability (at 100). Hilliard succeeded on a legal error in applying the regulations, not by re-weighing the medical evidence (at 101).

The Boland Aarab Way

Thomas E. Boland represented Mr. Hilliard. Tom began practicing in Great Falls in 1979, five years after his 1974 admission. In 2017 his daughter, Caitlin Boland Aarab, and Samir F. Aarab founded Boland Aarab PLLP as the successor to his practice. Hilliard shows the approach the firm still follows: read the regulation closely, find where the decision falls short of it, and make the court look. We bring that same care to our clients’ serious trucking and injury cases and catastrophic injury cases.

Frequently Asked Questions

What is a “borderline age” situation in Social Security disability? It is when a claimant is within a few days to a few months of an older age category that would change the result. The agency may not apply the categories mechanically in that situation (Hilliard, 563 F. Supp. at 101; 20 C.F.R. § 404.1563(b)).

Why does turning 55 matter? At 55, a claimant is considered “advanced age.” For Mr. Hilliard, that would have meant grid Rule 202.02, which directs a finding of disabled, instead of Rule 202.11 (at 101).

Who has the burden of proof? The claimant must prove disability. Once he shows he cannot do his past work, the government must show other work he can do (at 100).

Work With the Practice Behind These Cases

Boland Aarab is a Great Falls trial firm built on Tom Boland’s practice. The same attorneys who brief and argue in the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• Hilliard v. Schweiker, 563 F. Supp. 99 (D. Mont. 1983) (PDF)
• Daniels v. Apfel, 154 F.3d 1129 (10th Cir. 1998)
• 42 U.S.C. § 405
• 42 U.S.C. § 423
• 20 C.F.R. § 404.1563
• 20 C.F.R. Part 404, Subpart P, Appendix 2

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.