AR 99-3(5) (Rescinded 5/8/2000)
EFFECTIVE/PUBLICATION DATE: 5/27/1999
Acquiescence Ruling 99-3 (5)
McQueen v. Apfel, 168 F.3d 152 (5th Cir. 1999) -- Definition of Highly Marketable Skills for Individuals Close to Retirement Age -- Titles II and XVI of the Social Security Act.
Whether the Social Security Administration (SSA) is required to find that a claimant close to retirement age (60-64) and limited to sedentary or light work has "highly marketable" skills before determining that the claimant has transferable skills and, therefore, is not disabled.
Sections 223(d)(2)(A) and 1614(a)(3)(B) of the Social Security Act (42 U.S.C. 423(d)(2)(A) and 1382c(a)(3)(B));
20 CFR 404.1520(f)(1), 404.1563(d), 404.1566(c), 416.920(f)(1), 416.963(d), 416.966(c); 20 CFR Part 404, Subpart P, Appendix 2, sections 201.00(f) and 202.00(f);
Fifth (Louisiana, Mississippi and Texas).
McQueen v. Apfel, 168 F.3d 152 (5th Cir. 1999).
Applicability of Ruling:
This Ruling applies to determinations or decisions at all administrative levels of review (i.e., initial, reconsideration, Administrative Law Judge (ALJ) hearing and Appeals Council).
Description of Case:The claimant, Orie W. McQueen, Applied fordisability insurance benefits claiming he had not worked since hesuffered an injury on September 10, Following the denial of hisapplication for benefits at both the initial and reconsideration stepsof the administrative review process, the claimant requested andreceived a hearing before an ALJ, which was held on July 11, 1994. Mr.McQueen, who had worked as a traveling insurance salesman, turned 60years old on September 29, 1994, during the period following the hearingand prior to the ALJ's decision on April 24, 1995.
The ALJ issued a decision finding that Mr. McQueen was not disabled and denying his claim for disability benefits. The ALJ determined that although Mr. McQueen's impairment was severe and prevented him from doing his past work as a traveling insurance salesman, he possessed work skills that were "readily transferable to jobs within his vocational profile" and, therefore, must be found not disabled. In reaching this decision, the ALJ relied, in part, on the testimony of a vocational expert who testified that Mr. McQueen's skills in insurance sales could be transferred to an in-office insurance job. Mr. McQueen requested Appeals Council review of the ALJ's decision and the Appeals Council denied his request for review.
The claimant sought judicial review of SSA's decision in district court. The claimant contended, among other things, that the ALJ failed to apply the correct legal standard applicable to the claimant's age category in determining that Mr. McQueen was not disabled. The case was referred to a magistrate judge who found that the district court had no jurisdiction to consider whether the ALJ applied the wrong legal standard. The magistrate also recommended upholding the ALJ's findings. The district court adopted the magistrate's recommendations.
Mr. McQueen appealed to the Court of Appeals for the Fifth Circuit. On appeal, the claimant argued that the ALJ adjudicated his claim as if he were a person younger than 60 years old and applied the wrong standard under the disability regulations. The claimant contended that the ALJ was required under the regulations to find that he had skills that were "highly marketable" -- and not just "readily transferable" -- before deciding that he was not disabled. The Court of Appeals for the Fifth Circuit determined that the district court had jurisdiction to decide the issue of whether the ALJ applied the correct legal standard in deciding Mr. McQueen's claim. Because the issue was properly raised to the district court, the court of appeals concluded that the issue was properly before it on appeal.
The Fifth Circuit noted that a claimant for disability benefits bears the burden of proof for the first four steps of the five-step sequential evaluation process for determining disability. Once a claimant has satisfied his or her burden of proving at step four that he or she is unable to perform his or her previous work as a result of a severe impairment, the burden shifts to SSA at step five to show the existence of other work in the national economy that the claimant can perform, considering the claimant's residual functional capacity, age, education and work experience. The court observed that 20 CFR 404.1563(d) of the regulations provides rules relating to the consideration of a claimant's age for determinations at step five of the evaluation process for persons age 55 or over. Section 404.1563(d) states that if a claimant is of advanced age (55 or over), has a severe impairment, and cannot do medium work (see section 404.1567(c)), such claimant may not be able to work unless he or she has skills that can be transferred to less demanding jobs which exist in significant numbers in the national economy. In addition, section 404.1563(d) states that "[i]f you are close to retirement age (60-64) and have a severe impairment, we will not consider you able to adjust to sedentary or light work unless you have skills which are highly marketable."
The court of appeals observed that none of the hypothetical questions concerning sedentary work which the ALJ posed to the vocational expert at the hearing, and in subsequent written interrogatories, asked the vocational expert whether a claimant with Mr. McQueen's residual functional capacity and vocational characteristics could still be expected to adjust to other work at age 60. The court further observed that there was nothing in the hypothetical questions posed to the vocational expert, on whose testimony the ALJ relied, to indicate that the ALJ considered the standard in section 404.1563(d) for claimants close to retirement age.
In addition, the court noted that the Fifth Circuit had not yet addressed the issue of whether section 404.1563(d) requires SSA to "specifically find that a 60- to 64-year-old claimant has `highly marketable' skills in order to deny him disability benefits." The court further noted that a number of other "circuits and district courts have found that the failure to make a specific finding on high marketability renders [SSA's] decision unsupported by substantial evidence." The court of appeals stated that it agreed with these circuits and district courts. The court indicated that as of September 29, 1994, the date Mr. McQueen turned 60 years old, Mr. McQueen was "close to retirement age" for purposes of section 404.1563(d). The court of appeals held, therefore, that with respect to benefits for the period beginning on that date, SSA was required by the regulation to find that Mr. McQueen possessed "highly marketable" skills before it could find that Mr. McQueen had transferable skills and deny disability benefits. The court determined that with respect to disability benefits denied Mr. McQueen for that period, "the ALJ's decision cannot stand because it includes no finding that McQueen possessed highly marketable skills."
The court of appeals found that the ALJ's decision, as it related to the period beginning September 29, 1994, was not supported by substantial evidence, because it failed to treat Mr. McQueen as "close to retirement age" and denied him disability benefits without a finding under section 404.1563(d) that he possessed "highly marketable" skills. In addition, the court stated that SSA's "disregard for its own standards concerning McQueen's advanced age does not constitute good cause for the failure to incorporate [into the administrative case record] necessary evidence" regarding the marketability of the claimant's skills, "[n]or does the record evince any other good cause for that failure." The Fifth Circuit thereupon reversed the judgment of the district court with instructions to remand the case to SSA to grant Mr. McQueen's application and to calculate the disability benefits due the claimant pursuant to the court's opinion.
Statement As To How McQueen Differs From SSA's Interpretation Of The Regulations
At step five of the sequential evaluation process, SSA considers a claimant's chronological age in conjunction with residual functional capacity, education and work experience to determine whether a claimant can do work other than past relevant work. SSA takes into account how age affects a claimant's ability to adapt to new work situations and do work in competition with others in the workplace.
To this end, SSA's regulations provide that in order to find that a claimant whose sustained work capability is limited to light work or less and who is close to retirement age (60-64) possesses skills that can be used in (transferred to) other work, "there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry." 20 CFR Part 404, Subpart P, Appendix 2, section 202.00(f). SSA's regulations provide the same rule for a claimant whose sustained work capability is limited to sedentary work and who is of advanced age (55 and over). 20 CFR Part 404, Subpart P, Appendix 2, Section 201.00(f). If the claimant's skills are transferable to other work under this standard, SSA will consider such skills "highly marketable" under 20 CFR 404.1563(d) and 416.963(d). SSA's regulations do not require a specific, separate and distinct finding that a claimant's skills are "highly marketable" in reaching a conclusion that the claimant has transferable skills.
The Fifth Circuit interpreted 20 CFR 404.1563(d) to require SSA to make an additional finding regarding the marketability of a claimant's skills in order to determine whether the skills of a claimant close to retirement age are transferable to sedentary or light work. The court held that in the absence of a finding by SSA that the skills of such a claimant are "highly marketable," SSA may not conclude that the claimant possesses transferable skills and is not disabled.
Explanation of How SSA Will Apply the McQueen Decision Within the Circuit
This Ruling applies only to cases in which the claimant resides in Louisiana, Mississippi or Texas at the time of the determination or decision at any level of administrative review, i.e., initial, reconsideration, ALJ hearing or Appeals Council review.
In the case of a claimant whose sustained work capability is limited to sedentary or light work as a result of a severe impairment, who is close to retirement age (age 60-64), and who has skills, an adjudicator will make a separate finding regarding the marketability of the claimant's skills when determining whether the claimant's skills are transferable to other work under the standard specified in section 201.00(f) or 202.00(f) of 20 CFR Part 404, Subpart P, Appendix 2. Unless the adjudicator finds that the claimant's skills are "highly marketable," the adjudicator will conclude that the claimant's skills are not transferable to other work even if the standard for finding transferability of skills specified in section 201.00(f) or 202.00(f) is otherwise met. For purposes of this Ruling, an adjudicator will consider the claimant's skills to be "highly marketable" only if the skills are sufficiently specialized and coveted by employers so as to make the claimant's age irrelevant in the hiring process and enable the claimant to obtain employment with little difficulty. In determining whether a claimant's skills meet this definition of "highly marketable," an adjudicator will consider: (1) whether the skills were acquired through specialized or extensive education, training or experience; and (2) whether the skills give the claimant a competitive edge over other, younger, potential employees with whom the claimant would compete for jobs requiring those skills, giving consideration to the number of such jobs available and the number of individuals competing for such jobs.
SSA intends to clarify the regulations at issue in this case, 20 CFR 404.1563 and 416.963, through the rule making process and may rescind this Ruling once such clarification is made.
 Although the court of appeals' decision in McQueen concerned the interpretation of certain provisions of the title II disability program regulations, the title XVI disability program regulations contain provisions identical to those at issue in McQueen. Therefore, this Ruling extends to both title II and title XVI disability claims.
 Section 404.1563 and the corresponding title XVI regulation, section 416.963, are entitled "Your age as a vocational factor." Sections 404.1563(b)-(d) and 416.963(b)- (d) specify three age categories: "Younger person" (under age 50); "Person approaching advanced age" (age 50-54); and "Person of advanced age" (age 55 or over). The last category includes a subcategory -- a person close to retirement age (age 60-64).
 Although the court did not adopt SSA's interpretation of "highly marketable" skills, the Fifth Circuit in McQueen also did not set forth specific, alternative criteria for determining when a claimant's skills may be considered "highly marketable." Therefore, in the absence of a statement by the Fifth Circuit of a specific definition, we have adopted, for purposes of this Ruling, the standard articulated in Preslar v. Secretary of Health and Human Services, 14 F.3d 1107 (6th Cir. 1994), for which we published Acquiescence Ruling 95-1(6), for determining when the skills of a claimant close to retirement age may be considered "highly marketable." Although this standard was not specifically adopted or discussed by the court in McQueen, the court did cite the Preslar decision in support of its holding in McQueen.